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NORTH CAROLINA 

REGISTER 



VOLUME 14 • ISSUE 10 • Pages 737 - 902 



RECEIVED 
NOV 1 2 1999 

KATHRINE R. EVERETT 
LAW LIBRARY 



November 15, 1999 



IN THIS ISSUE 

Executive Orders 

Voting Rights Letters 

Administrative Hearings, Office of 

Environment and Natural Resources 

Foresters, Board of Registration for 

Health and Human Services 

Insurance 

Justice 

Physical Therapy Examiners, Board of 

Plumbing, Heating & Fire Sprinkler Contractors 

Real Estate Commission 

State Personnel 

Substance Abuse Professional Certification Board 

Rules Review Commission 

Contested Case Decisions 



PUBLISHED BY 

The Office of Administrative Hearings 

Rules Division 

6714 Mail Service Center 

Raleigh, NC 27699-6714 

Telephone (919) 733-2678 

Fax (919) 733-3462 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any of it 
components, consult with the agencies below. The bolded headings are typical issues which the givei 
agency can address, but are not inclusive. 

Rule Notices, Filings, Register. Deadlines. Copies of Proposed Rules, etc. 

Office of Administrative Hearings 

Rules Division 

Capehart-Crocker House (919) 733-2678 

424 North Blount Street (919) 733-3462 FAX 

Raleich, North Carolina 27601-2817 



contact: Molly Masich, Director APA Services 
Ruby Creech, Publications Coordinator 



Fiscal Notes & Economic Analysis 

Office of State Budget and Management 

1 16 West Jones Street 

Raleigh, North Carolina 27603-8005 

contact: Warren Plonk, Economist III 



Rule Review and Legal Issues 

Rules Review Commission 
1307 Glenwood Ave., Suite 159 
Raleigh, North Carolina 27605 

contact: Joe DeLuca Jr., Staff Director Counsel 
Bobby Bryan, Staff Attorney 



mmasich@oah. state, nc. us 
rcreech@oah. state. nc. us 



> 



(919)733-7061 
(919) 733-0640 FAX 

wplonk@osbm.state.nc.us 



(919) 733-2721 
(919) 733-9415 FAX 



Le gislative Process Concerning Rule-making 

Joint Legislative Administrative Procedure Oversight Committee 

545 Legislative Office Building 

300 North Salisbury Street (919) 733-2578 

Raleigh, North Carolina 27611 (919) 715-5460 FAX 



contact: Mary Shuping, Staff Liaison 



marys@ms.ncga.state.nc.us 



County and Municipality Government Questions or Notification 

NC Association of County Commissioners 

215 North Dawson Street (919)715-2893 

Raleigh, North Carolina 27603 

contact: Jim Blackburn or Rebecca Troutman 



NC League of Municipalities 
2 1 5 North Dawson Street 
Raleigh, North Carolina 27603 

contact: Paula Thomas 



(919)715-4000 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-1 1.13 



NORTH CAROLINA 
REGISTER 




Volume 14, Issue 10 
Pages 737 - 902 



November 15, 1999 



This issue contains documents officially filed 
through October 22. 1999. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

PO Drawer 27447 

Raleigh. NC 2761 1-7447 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann III. Director 

Camille Winston. Deputy Director 

Molly Masich. Director of APA Services 

Ruby Creech. Publications Coordinator 

Linda Dupree. Editorial Assistant 

Jessica Flowers. Editorial Assistant 



II. 
ill. 



IV. 



VI. 



VII. 
VIII. 



I\. 



IN THIS ISSUE 

EXECUTIVE ORDERS 

Executive Orders 162-164 737-738 

IN ADDITION 

Voting Rights Letters 739 741 

RULE-MAKING PROCEEDINGS 
Environment and Natural Resources 

Environmental Management Commission 743 - 749 

Health and Human Services 

Child Care Commission 742 

Social Services 742-743 

Licensing Boards 

Plumbing. Heating & Fire Sprinkler Contractors 749 

Substance Abuse Professional Certification Bd 749 

PROPOSED RULES 

Environment and Natural Resources 

Environmental Management 755 - 757 

Health Services 757-767 

Health and Human Services 

Health Services 767 - 77 1 

Medical Assistance 750 - 752 

Insurance 

Agent Services Division 752 - 755 

Licensing Boards 

Physical Therapy Examiners. Board of 771 - 772 

Real Estate Commission 772 - 797 

TEMPORARY RULES 
Environment and Natural Resources 

Environmental Management 823 - 838 

Health and Human Services 

Secretary of Health and Human Services 799 - 809 

Social Services Commission 798 - 799 

Insurance 

Financial Evaluation Division 811-819 

Life and Health Division 819-822 

Property and Casualty Division 809 - 81 1 

Special Services Division 822 - 823 

APPROVED RULES 839-884 

Administrative Hearings, Office of 

Civil Rights Division 

General 

Rules Division 
Environment and Natural Resources 

Coastal Management 

Environmental Management Commission 

Health Services 

Sedimentation Control Commission 

Well Contractors Certification Commission 

Wildlife 
Health and Human Services 

Health Services 
Insurance 

Life and Health Division 
Justice 

Criminal Justice Ed & Training Standards Commission 
Licensing Boards 

Foresters. Board of Registration for 
State Personnel 

Slate Personnel Commission 

RULES REVIEW COMMISSION 885 - 892 

CONTESTED CASE DECISIONS 

Index to ALJ Decisions 893-899 

Text of Selected Decisions 

98 EHR 1735 900 - 902 

CUMULATIVE INDEX 1 - 85 



North Carolina Register is published semi-monthly for SI 95 per year by the Office of Administrative Hearings. 424 North Blount Streei. Raleigh. NC 
27601 (ISSN 15200604) to mail at Periodicals Rates is paid at Raleigh, NC POSTMASTER: Send Address changes to the North Carolina Register, 
PO Drawer 27447. Raleigh NC 27hl 1-744" 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles and chapters, 
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive 
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be 
numerical in order. The other two. subchapters and sections are optional subdivisions to be used by agencies when 
appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 



TITLE 



DEPARTMENT 



LICENSING BOARDS 



CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Athletic Trainer Examiners 


3 


4 


Commerce 


Auctioneers 


4 


5 


Correction 


Barber Examiners 


6 


6 


Council of State 


Certified Public Accountant Examiners 


8 


7 


Cultural Resources 


Chiropractic Examiners 


10 


8 


Elections 


Employee Assistance Professionals 


11 


9 


Governor 


General Contractors 


12 


10 


Health and Human Services 


Cosmetic Art Examiners 


14 


1 1 


Insurance 


Dental Examiners 


16 


12 


Justice 


Dietetics/Nutrition 


17 


13 


Labor 


Electrical Contractors 


18 


I4A 


Crime Control & Public Safety 


Electrolysis 


19 


15A 


Environment and Natural Resources 


Foresters 


20 


16 


Public Education 


Geologists 


21 


17 


Revenue 


Hearing Aid Dealers and Fitters 


2 2 


18 


Secretary of State 


Landscape Architects 


26 


19A 


Transportation 


Landscape Contractors 


28 


20 


Treasurer 


Marital and Family Therapy 


31 


*21 


Occupational Licensing Boards 


Medical Examiners 


32 


TT 


Administrative Procedures (Repealed) 


Midwifery Joint Committee 


33 


23 


Community Colleges 


Mortuary Science 


34 


24 


Independent Agencies 


Nursing 


36 


2? 


State Personnel 


Nursing Home Administrators 


37 


26 


Administrative Hearings 


Occupational Therapists 


38 


27 


NC State Bar 


Opticians 


40 






Optometry 


42 






Osteopathic Examination & Reg. (Repealed) 


44 






Pastoral Counselors. Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing. Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Psychology Board 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Vetennarv Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



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EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 162 

EXTENDING EXECUTIVE ORDER NO. 159 

EMERGENCY RELIEF FOR DAMAGE 

CAUSED BY HURRICANE FLOYD 



provided by North Carolina General Slatute § 89C-19. 1(h)(2). 

Done in the Capital City of Raleigh. North Carolina, this the 
18 lh day of October, 1999. 



By the power and authority vested in me as Governor by the 
Constitution and laws of the State of North Carolina. IT IS 
ORDERED: 

Executive Order Number 1 59. Emergency Relief for Damage 
Caused by Hurricane Floyd, is re-instituted and the provisions 
therein shall remain in full force and effect through November 
15, 1999. 

Done in the Capital City of Raleigh. North Carolina, this the 
18th day of October. 1999. 

EXECUTIVE ORDER NO. 163 

EXTENDING QUALIFIED IMMUNITY OF 

PROFESSIONAL ENGINEERS 

WHEREAS, North Carolina General Statute § 89C-19.1 
grants qualified immunity to professional engineers who 
voluntarily, without compensation, provide structural, electrical, 
mechanical, or other engineering services at the scene of a 
declared disaster or emergency under circumstances more fully 
described in the said statute; and 

WHEREAS, professional engineers have been providing such 
voluntary services in the aftermath of Hurricane Floyd; and 

WHEREAS, under North Carolina General Statute § 89C- 1 9. 1 
the qualified immunity terminates forty five days after the 
declaration of the emergency or disaster, unless the qualified 
immunity period is extended by an executive order issued by the 
Governor under the Governor's emergency executive powers; 
and 

WHEREAS, it is necessary and appropriate to extend the 
qualified immunity period. 

NOW. THEREFORE, by the power vested in me as Governor 
by the laws and Constitution of the State of North Carolina, IT 
IS ORDERED: 

Section 1 . Qualified Immunity Period Extended 
In accordance with the provisions of North Carolina General 
Statute § 89C- 1 9. 1 . the statutorily allowed qualified immunity to 
professional engineers who arc voluntarily, without 
compensation, providing structural, electrical, mechanical, or 
other engineering services at the scene of Hurricane Floyd 
declared disaster or emergency areas is hereby extended for forty 
five days. 



Section 



Effective Date of Extension 



This extension period shall begin immediately upon the 
expiration of the initial forty five day qualified immunity period 



EXECUTIVE ORDER NO. 164 

DELEGATION OF AUTHORITY 

TO ATTORNEY GENERAL 

TO ASSIST LOCAL GOVERNMENTS IN 

HURRICANE FLOYD RECOVERY EFFORTS 

WHEREAS. I have proclaimed, pursuant to G.S. 1 66A-6 and 
G.S. 14-288.15, that a state of disaster and state of emergency 
exists in North Carolina due to Hurricane Floyd and resultant 
flood damage; and 

WHEREAS, thousands of victims of Hurricane Floyd and the 
resultant Hooding in eastern North Carolina have incurred severe 
damages to their homes, businesses and other property; and 

WHEREAS, the victims of such damages are in great need of 
legitimate, honest, and competent contractors and other service 
providers to perform necessary repairs, reconstruction, cleanup 
and other remedial services; and 

WHEREAS, based on prior experience. I am concerned that 
homeowners and business owners contracting for such services 
may be taken advantage of by unscrupulous contractors and 
service providers, and that it is the responsibility of the State of 
North Carolina to minimize such risk to the citizens of the State; 
and 

WHEREAS, there is a need for the establishment of contractor 
and service provider monitoring programs to assist the victims 
of Hurricane Floyd in obtaining the timely services of legitimate, 
honest and skilled professionals while avoiding victimization by 
unscrupulous practices: and 

WHEREAS, local governments may have insufficient 
resources in this time of crisis to adequately protect their citizens 
from unscrupulous practices; and 

WHEREAS, the Attorney General has offered the services of 
his office to support local government efforts to monitor 
contracting practices and to provide other legal assistance in 
severely impacted counties; and 

WHEREAS. I have determined that the interests of local 
governments and citizens in severely impacted counties will 
benefit from the assistance of the Attorney General in this effort. 

NOW. THEREFORE, pursuant to the authority vested in me 
as Governor by the Constitution and laws of the State of North 
Carolina. IT IS ORDERED: 

1. The Attorney General shall, as soon as reasonably 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



737 



EXECUTIVE ORDERS 



possible, contact local officials in severely impacted 
counties and offer the assistance of his office in 
establishing local programs to monitor and deter 
unscrupulous contracting practices in connection with 
Hurricane Floyd recovery efforts. 

The Attorney General is authorized to utilize such law 
enforcement and other personnel within his 
department as may be necessary, in his judgment, to 
provide assistance requested by local governments. 

Local governments may establish and, if requested by 
local governments the Attorney General may assist in 
the establishment of contractor monitoring programs 
in flood or hurricane damaged areas which may 
include: 

a. Verification of any professional or other 
business licenses issued to contractors by their 
state of residence or principal place of 
business. 

b. Information verifying compliance with such 
insurance requirements as may be mandated by 
North Carolina laws. 

c. A background check of state and national 
criminal history records upon submission of 
appropriate fingerprint cards. 

d. Execution of a sworn affidavit by the 
contractor certifying that all work performed 
shall be for a price reasonable under the 
circumstances and consistent with the quality 
generally expected of that particular trade or 
profession. 

e. Procedures for revocation of the authority to do 
business in flood or hurricane damaged areas 
upon evidence that unacceptable practices or 



other violations of the program have occurred 

f. Procedures for referral of unlawful activities or 
violations of this Executive Order to 
appropriate authorities for expeditious 
prosecution 

g. Random or systematic monitoring and identity 
checks of contractors and service providers by 
law enforcement authorities to further program 
compliance and the minimization of unethical 
practices. 

4. All state and local law enforcement authorities are 
directed to provide such assistance, including 
enforcement activities, as the Attorney General may 
request in implementing this program. 

5. Contractor monitoring programs established by local 
governments in accordance with this Order shall not 
be subject to conflicting rules or regulations issued by 
any state or local governmental entity. 

6. The Attorney General is further authorized, in his 
discretion, to provide such other legal or law 
enforcement services as may be requested by local 
governments or determined by the Attorney General 
to be in the best interest of the State of North 
Carolina. 

7. This Executive Order is effective immediately, and 
shall remain in effect until rescinded. 

Done in the Capital City of Raleigh. North Carolina this the 
18lhdav of October, 1999. 



738 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



IN ADDITION 



This Section contains public notices that are required to he published in the Register or have been approved by the Codifier 
of Rules for publication. 



U.S. Department of Justice 
Civil Rights Division 



JDR:DHH:NT:jdh Voting Section 

DJ 166-012-3 P.O. Box 66128 

99-2408 Washington, DC. 20035-6128 



October 4. 1999 



Richard J. Rose 

Poyner & Spruill 

P.O. Box 353 

Rocky Mount, North Carolina 27802 



Dear Mr. Rose: 



This refers to two annexations (Ordinance Nos. 0-99-19 and 0-99-40) to the city of Rocky Mount in Edgecombe County 
and Nash Counties. North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 
1973c. We received your submission on April 19. 1999. 

The Attorney General does not interpose any objection ot the specified changes. However, we note that Section 5 
expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of 
the changes. Sec the Procedures for the Administration of Section 5 ( 28 C.F.R. 51.41 i. 



Sincerely, 



Joseph D. Rich 
Acting Chief 
Votine Section 



14:10 NORTH CAROLINA REGISTER November 15, 1999 739 



IN ADDITION 



I 



JDR:DHH:NT:par 

DJ 166-012-3 

99-2425 Washington, DC. 20035-6128 



U.S. Department of Justice 
Civil Ritihts Division 



Voting Section 
P.O. Box 66 J 28 



October 6, i 999 



Donald I. McRee. Jr.. Esq. 

County Attorney 

P.O. Box 39 

Elizabeth City, North Carolina 27907-0039 



Dear Mr. McRee: 






This refers to the polling place change (Nixonton Precinct) for Pasquotank County, North Carolina, submitted to the 
Attorney General pursuant to Section 5 of the Voting Rights Act. 42 U.S.C. 1973c. We received your submission on April 20. 
1999. 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 
expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of 
the change. See the Procedures for the Administration of Section 5 (28 C.F.R. 5 1 .41 ). 



Sincerely, 



Joseph D. Rich 
Acting Chief 
Voting Section 



740 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



I \ ADDITION 



U.S. Department of Justice 
Civil Rights Division 



JDR:DHH NT:par Voting Section 

DJ 1 66-0 1 2-3 P O. Box 66128 

1999-2487 Washington, DC. 201)35-6128 



Octobers. 1999 



David Holec. Esq. 

City Attorney 

P.O. Box 7207 

Greenville. North Carolina 27835-7207 



Dear Mr. Holec: 



This refers to eight annexations (Ordinance Nos. 99-64 through 99-71 ) and their designation to council districts of the 
City of Greenville in Pitt County. North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights 
Act. 42 U.S.C. 1973c. We received your submission on August 25. 1999. 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 
expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of 
the changes. See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41 ). 



Sincerely, 



Joseph D. Rich 
Acting Chief 
Voting Section 



14:10 NORTH CAROLINA REGISTER November 15, 1999 741 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The agency 
must publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a 
rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register 
under the section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making 
Proceedings and can be found in the Register under the section heading of Rule-making Agendas. Statutory reference: 
G.S. 150B-21.2. 



TITLE 10 - DEPARTMENT OF HEALTH AND 
HUMAN SERVICES 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3U - CHILD DAY CARE STANDARDS 

iy jntice of Rule-making Proceedings is hereby given by the 
i V North Carolina Child Care Commission in accordance 
with G.S. 150B-21 .2. The agency shall subsequently publish 
in the Register the text of the rules it proposes to adopt as a 
result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

10 NCAC 3D .071)0. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 143B-168.3 

Statement of the Subject Matter: Child care rules 
regarding in-service training for child care providers 

Reason for Proposed Action: The Child Care Commission 
proposes rulemaking in order to clarify the approval or 
disapproval of agencies or individuals to offer in-senice 
training for child care providers. 

Comment Procedures: Questions or written comments 
regarding this matter max be directed to Janice Fain. APA 
Coordinator, Division of Child Development. 319 Chapanoke 
Road. PO Box 29553. Raleigh. NC 27526-0553; (919} 662- 
4543. 



received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

10 NCAC 4IH; 41 P. Other rules max he proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 48; 131D-10.5; 143B- 
153 

Statement of the Subject Matter: The Social Sendees 
Commission intends to amend rules in 10 NCAC 41 H to reflect 
technical citation changes and history note changes made 
previously. Additionally, the Commission intends to amend 10 
NCAC 41 P to reflect changes in federal law regarding the 
recruitment of adoptive homes. 

Reason for Proposed Action: An amendment to the 
Multiethnic Placement Act, necessitates the need to amend the 
rules. The Interethnic Provision prohibits the consideration of 
race, color, or national origin as a basis for the placement of 
a child for adoption. Amendment of APA rules is necessarx to 
ensure that county departments of social services and private 
child-placing agencies licensed for adoption adhere to the 
provisions of both the 1994 MEPA and the 1996 additions to 
MEPA. 

Comment Procedures: Anyone wishing to comment should 
contact Sharnese Ransome, APA Coordinator, Social Sen-ices 
Commission. NC Division of Social Sen ices, 325 N. Salisbury 
Street. 2401 Mail Service Center. Raleigh, NC 27699-2401. 
phone 919-733-3055. 



%:$:%%%;%;%:$:%;%;%:$:$:%;$:%%.$:$;%: 



CHAPTER 42 - INDIVIDUAL AND FAMILY SUPPORT 



CHAPTER 41 - CHILDREN'S SERVICES 

SUBCHAPTER 41 H - ADOPTION STANDARDS 

SUBCHAPTER 41P - CHILD-PLACING AGENCIES: 
ADOPTION 

■\jotice of Rule-making Proceedings is hereby given by the 
1 V Social Sendees Commission in accordance with G.S. 
150B-21.2. The agency shall subsequently publish m the 
Register the text of the rules it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments 



SUBCHAPTER 42E - ADULT DAY CARE 
STANDARDS FOR CERTIFICATION 

SUBCHAPTER 42Z - ADULT DAY HEALTH 
STANDARDS FOR CERTIFICATION 

-\ mtice of Rule-making Proceedings is hereby given by the 
i V Social Services Commission in accordance with G.S. 
150B-21.2. The agency shall subsequently publish in the 
Register the text of the rules it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments 
received on this notice. 



742 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



RULE-MAKING PROCEEDINGS 



Citation to Existing Rules Affected by this Rule-Making: 

10 NCAC 42E; 42Z. Other rules max be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 131D-6; I43B-153. 

Statement of the Subject Matter: 10 NCAC 42E and 10 
NCAC 42Z govern the provision of Adult Day Care and Adult 
Day Health seniles as mandated by G.S. I3ID-6. 

Reason for Proposed Action: S.L 1999-334 requires adult 
day care programs that provide, advertise, market or 
otherwise promote themselves as providing special care 
sen ices for persons with Alzheimer's disease or other 
dementias, a mental health disability or other special needs 
disease or condition to develop written disclosures. The 
disclosure of their policies and procedures on "special care" 
shall be made available to the Department and to individuals 
seeking services. Additional rules have been developed to 
assure quality implementation of the disclosure of specialized 
care in the area of facility, enrollment, individual senice 
plans, staff training and programming. 

Comment Procedures: Anyone wishing to comment should 
contact Sharnese Ransome. APA Coordinator, Social Services 
Commission, NC Division of Social Services. 325 N. Salisbury 
Street. Raleigh. NC 2760.1 phone 919-733-3055. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2C - WELL CONSTRUCTION 
STANDARDS 

•k jotice of Rule-making Proceedings is hereby given by the 
i V Environmental Management Commission in accordance 
with G.S. J50B-2I.2. The agency shall subsequently publish 
in the Register the text of the rules it proposes to adopt as a 
result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

ISA NCAC2C .0102-.0103, .0105, .0107-.0108, .0110-.0U4, 

.01 17-. 01 18. Other rules may be proposed in the course of the 
rule-making process. 

Authority for the rule-making: G.S. 87-85; 87-87; 87-88; 
143-214.2; 143-215.1; 143-215.3; 143-355(e); 150B-23. 

Statement of the Subject Matter: The proposed 
amendments to the I5A NCAC 2C .0100 Well Construction 
Standards are summarized as follows: 
Specifies new definitions and amends others definitions in 



Rule .0101 to communicate requirements more clearly. The 
amendment adds definitions for "clay", "formation material", 
"vent" and "yield". 

Repeals the registration requirements for well contractors by 
January 1. 2000 in Rule .0103. Well driller registration is to 
be replaced by well contractor certification requirements 
under title 15A NCAC 27 (Temporary Rules effective on 
12/15/99; Permanent Rules approved by the Rules Review 
Commission for Legislative Review on 09/30/99). No changes 
are proposed to the requirements governing pump installer 
registration. 

Clarifies permitting requirements under Rule .0105. Removes 
permitting requirements for wells intended for the recovery of 
minerals and ores. Removes permitting requirements for oil 
and gas exploratory and recovery wells. Requires that 
monitoring wells be installed by a permit. 
Rule .0107 clarifies minimum horizontal separation 
requirements, casing requirements, well grouting 
requirements, requirements for gravel-and-sand packed wells, 
well development requirements, and applicable identification 
plate requirements. The rule clarified minimum separation 
requirements for certain types of solid waste landfills, building 
foundations, sulfate water bodies. Specifies a new minimum 
separation requirement of 50 feet for petroleum tanks used for 
heating equipment, boilers, or furnaces. Clarifies that the 
minimum horizontal distances for locating a well are those 
that exist at the time of well construction. The proposed rules 
also specift that if thermoplastic casing is used in well 
construction, that it not be driven into consolidated rock. The 
rule is amended to specify' that when wells are constructed in a 
consolidated rock formation, casing must be firmly seated five 
feet into rock instead of one foot. 

Rule .0108 clarifies standards for well used for purposes other 
than water supply and removes unnecessary requirements. 
Specifies that the upper most three feet of grout below land 
sulfate must be a "concrete" or "cement-type grout" so as to 
provide well casing stability. Specifies that these kinds of wells 
are to be secured with a locking cap. The proposed changes 
remove requirements for groundwater level measuring wells. 
Minor editorial revisions and a few clarifications are 
proposed for Rule .0110 (Well Tests for Yield). Rule .0111 
(Disinfection of Water Well Supplies), Rule .0112 (Well 
Maintenance: Repair: Groundwater Resources), anil Rule 
.0114 (Data and Records Required). A change to Rule .0112 
requires the well owner maintain the well in such a manner 
that it will conserve and protect groundwater resources. An 
amendment to Rule .01 14 specifies that, if the Division makes 
a request for samples of formation cuttings, the well 
contractor will provide those samples to the Division prior the 
completion of drilling or boring activities. 
Rule .01 13 specifies changes to abandonment procedures for 
permanently abandoned wells, temporary wells, monitoring 
wells, and wells that are bored or hand dug into 
unconsolidated material. The proposed changes allow for the 
use of various grouts, dry clay or material excavated during 
drilling as abandonment fill material for well abandonment at 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



743 



RULE-MAKING PROCEEDINGS 



temporary wells, monitoring wells, or wells that are bored or 
hand dug. The rule also specifies that disinfection of 
abandoned wells he performed using a 70% hypochlorite 
solution and in accordance with the requirements of 15A 
NCA C2C .0111. The use of commercial household bleach will 
no longer be allowed under this rule. 

Changes to Rule .01 17 (Designated Areas: Wells Cased to 
Minimum Depth of 35 Feet) redefines the designated areas 
where wells are to be cased to a minimum depth of 35 feet. 
Changes to variance requirements in Rule .0118 specifies that 
the Director will respond to a request for a variance in writing 
within 30-day upon receipt. 

Reason for Proposed Action: 

15A NCAC 2C M102-.0103, .0105, .0107-.0108, .0110:0114, 
.0117-.0118 - The last set of amendments to the 15A NCAC 2C 
.0100 (Well Construction Standards) went into effect on 
December 1 , 1992. Since that time, the Groundwater Section 
has found that it is necessary to clarify specifications for some 
wells, strengthen other requirements, and remove unnecessary 



requirements. From mid -1997 through August 1999 the 
Groundwater Section developed rule changes and met with 
stakeholders on changes to these rules. In addition, well 
driller registration requirements are being removed to be 
consistent with Session Law 1997-358. This law amended the 
registration requirement in GS. 143-355(e) by requiring the 
funds collected under this program be placed in a non- 
reverting Well Construction Fund adopted under G.S. 87-98.9. 
Monies collected in this fund are to be used for the 
administration of Well Contractor Certification. Changes to 
the Well Construction Standards in 15A NCAC 2C .0100 will 
need to be done through rulemaking pursuant to G.S. 1 50B. 

Comment Procedures: All persons interested in this 
proposed amendment are encouraged to submit written 
comments or questions to David Fiance, ENR-DEM: 
Groundwater Section, PO Box 29578, Raleigh, North 
Carolina, 27626-0578. Comments may also be sent b\ fax 
transmission to Mr. Fiance at (919) 715-0588 or via electronic 
mail to David.Ha.nce@ncmail.net. 



CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2L - GROUNDWATER CLASSIFICATION 
AND STANDARDS 

x mtice of Rule-making Proceedings is hereby given by the Environmental Management Commission in accordance with G.S. 
1 V 150B-21 .2. The agency shall subsequently publish in the Register the text of the rules it proposes to adopt as a result of this 
notice of rule-making proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 15A NCAC 2L .0202. Other rules may be proposed in the course of 
the rule-making process. 

Authority for the rule-making: G.S. 143-214.1: 143B-282(a)(2) 

Statement of the Subject Matter: The amendment to 15A NCAC 2L .0202 proposes changes to thirty-six of the current 
Groundwater Quality Standards for these substances in Class GA and Class GSA groundwaters. Groundwater Quality Standards 
that are shown in bold typeface are proposed to have the concentration level lowered (i. e. made more restrictive and protective). 
Groundwater Quality Standards for which the numeric concentrations are proposed to be increased (i.e. made less restrictive) 
are displayed in normal typeface. These substances are shown with their current Groundwater Quality Standard and the 
proposed change. Unless otherwise noted, numeric standards for these substances are shown in milligrams per liter as follows as 
follows: 



SUBSTANCE 



Acrylamide 

Arsenic 

Boron 

Bromoform 

Cadmium 

Carbofuran 

Carbon Tetrachloride 



CURRENT 
CONCENTRATION 

(milligrams per liter or mg/L) 



0.00001 

0.05 

0.32 

0.0019 
0.005 
0.036 
0.0003 



NEW 
CONCENTRATION 

(milligrams per liter or mg/L) 

0.000008 

0.00002 

0.315 

0.00443 

0.00175 

0.035 

0.000269 



744 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



RULE-MAKING PROCEEDINGS 



Chlordane 

Chloroform 

2-Chlorophenol 

♦Chromium 

Cyanide 

1 ,2-Dichlorobenzene 

1 ,3-Dichlorobenzene 

1 ,4-Dichlorobenzene 

1,1- Dichloroethane 

1 , 1 -Dichloroethylene 

1,2-Dichloropropane 

Di( 2-ethy Ihexyl Iphthalate 

1,4-Dioxane 

Ethylbenzene 

Ethylene Glycol 

Fluoride 

Heptachlor 

Heptachlor Epoxide 

Heptane 

Mercury 

Methylene Chloride 

Methyl Ethyl Ketone 

Methyl Tert Butyl Ether 

(MTBE) 

Pentachlorophenol 

*» Radium-226 

* Radium-228 

Silver 

trans- 1 ,2-Dichloroethylene 

Zinc 



2.7 x 10-' 

0.00019 

0.001 

0.05 

0.154 

((.62 

0.62 

0.075 

0.7 

0.007 

0.00056 

0.003 

0.007 

0.029 

7.0 

2.0 

8.0 x 10 ■" 

4.0 x 10 ■" 

2.1 

0.0011 

0.005 

0.17 

0.200 

0.0003 

5pCi/L 

5pCi/L 

0.018 

0.07 

2.1 



2.69 x 10 ' 

0.0057 

0.035 

0.00175 

0.07 

0.024 

0.63 

0.011 

0.07 

5.8 x 10 s 

0.00051 

0.0025 

0.00318 

0.70 

14.0 

1.0 

7.8 x 10- 6 

3.8 x 10" 

0.42 

0.00105 

0.0046 

4.20 

0.070 

((.00029 

0.160 pCi/L 

0.192 pCi/L 

0.0175 

0.10 

1.05 



♦ - The current Groundwater Quality Standard for Chromium is listed in 15A NCAC 2L .0202(g)( 17). The recommended 
Groundwater Quality Standard for Chromium is two valances of Chromium which, will be proposed as "Total Chromium (III and 

IV r. 

*P - The current Groundwater Quality Standards of Radium is a combined total of Radium-226 and Radium-228. The 
recommended Groundwater Quality Standard to be proposed in the amendment will specif}' the Groundwater Quality Standards 
for Radium-226 and Radium-228 as separate substances. Groundwater Quality Standards for these radioisotopes are expressed 
as units of picocuries per Liter. A curie Id) is the unit of activity of a radioactive substance that corresponds to 3.7 x 10 
disintegrations per second and is approximately equal to 1 gram of radium. A picocurie (pCi) is one/one-trillionth part of a 
curie. 

Reason for Proposed Action: The amendment to 15A NCAC 2L .0202. Groundwater Quality Standards, will revise the current 
groundwater standards for Acnlamide, Arsenic, Boron. Bromoform. Cadmium. Carbofuran. Carbon Tetrachloride. Chlordane. 
Chloroform. 2-Chlorophenol. Total Chromium (III and IV), Cyanide, 1 ,2-Dichlorobenzene, 1 ,3-Dichlorobenzene. 1,4- 
Dichlorobenzene, 1 ,1 -Dichloroethane, 1 ,1 -Dichloroethylene. 1,2-Dichloropropane, Di(2-ethylhexy iphthalate. 1,4-Dioxane, 
Ethylbenzene. Ethylene Glycol. Fluoride. Heptachlor, Heptachlor Epoxide, Heptane, Mercury, Methylene Chloride, Methyl Ethyl 
Ketone. Methyl-Tert Butyl Ether (MTBE). Pentachlorophenol. Radium-226, Radium-228. Silver, trans- 1 ,2Dichloroethylene, and 
Zinc. 

Action to amend the concentration levels for the 36 substances listed in 15A NCAC 2L .0202 is the result of a request for biennial 
review of Groundwater Quality Standards pursuant to 15A NCAC 2L .0202(f). The proposed rule changes are being made to 
incorporate the most updated health information and concentration levels as Groundwater Quality Standards in 15A NCAC 2L 
.0202. The 15A NCAC 2L .0202 Groundwater Quality Standards must be revised in accordance with the requirements of G.S. 
150B. 

Comment Procedures: All persons interested in this proposed amendment are encouraged to submit written comments or 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



745 



RULE-MAKING PROCEEDINGS 



questions to David Hance, ENR-DEM: Groundwater Section. PO Box 29578. Raleigh. NC. 27626-0578. Comments may also be 
sent by fax transmission to Mr. Hance at (919) 715-0588 or via electronic mail to David.Hance@ncmail.net. 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2L - GROUNDWATER CLASSIFICATION 
AND STANDARDS 



tice of Rule-making Proceedings is hereby given by the Environmental Management Commission in accordance with G.S. 
The agency shall subsequently publish in the Register the text of the rules it proposes to adopt as a result of this 



* jotice of Ki 
1\ I50B-21.2 
notice of rule-making proceedings and any comments received on this notice. 



Citation to Existing Rules Affected by this Rule-Making: ISA NCAC 2L .0202. Other rules may be proposed in the course of 
the rule-making process. 

Authority for the rule-making: G.S. 143-214.1; 143B-282(a)(2) 

Statement of the Subject Matter: ( The amendment addresses two separate issues under Roman Numeral I and Roman Numeral 

11); 

I. Establishing Groundwater Quality Standards in title 15A NCAC 2L .0202: The amendment to 15A NCAC 2L .0202 proposes 

the establishment of Groundwater Quality Standards for thirty-eight substances in Class GA and Class GSA groundwaters. 

Numeric standards for these substances are shown in milligrams per liter as follows: 



SUBSTANCE 



§-=Alkane Carbon Fraction Class C5-C8 

XAlkane Carbon Fraction Class C9-C18 

s-=Alkane Carbon Fraction Class C19-C32 

I Aromatics Carbon Fraction Class C9-C32 

Benzo(b)fluoranthcnc 

Benzo( k Ifluoranthene 

Benzol a )pyrene 

sec-Butylbenzene 

tert-Butylbenzene 

n-Butylbenzene 

Chloromethanc 

2-Chlorotoluene 

Dibenz(a.h (anthracene 

P.P'- Dichlorodiphenyl Dichloroethane (DDD) 

P.P'-Dichlorodiphenyl Tnchloroethane (DDT) 

Dieldrin 

2,4-Dimethylphenol ( m-xylenol ) 

Disulfoton 

** Endosulfan II 

© Endrin 

▲ Hexachlorocyclohexane 

Indenoi l,2,3-cd)pyrene 

Isophorone 

Isopropylbenzene 

2-Methvlnaphthalene 

3-Methylphenol (m-cresol) 

4-Methylphenol (p-cresol) 

N-Nitrosodimethylamine 



♦CONCENTRATION 



0.42 


4.20 


42.0 


0.210 


4.7 x 10 ' 


4.7 x 10' 4 


4.7 x 10" 


0.070 


0.070 


0.070 


2.6 x 10" 3 


0.14 


4.7x 10" 


1.4 x 10 4 


1.0 x K)- 4 


2.2 x 10 h 


0.14 


2.8 x 10 4 


0.0420 


2.1 x 10 3 


1.9 x 10 s 


4.7 x 10" 5 


0.0368 


0.070 


0.0280 


0.0350 


0.00350 


7.0 x 10' 



• 



746 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



1 



RULE-MAKING PROCEEDINGS 



Petroleum Aliphatic Carbon Fraction Class C5-C8 0.42 

Petroleum Aliphatic Carbon Fraction Class C9-C 1 X 4.20 

Petroleum Aliphatic Carbon Fraction Class C 1 9-C36 42.0 

Phorate 1.4x 10' 

n-Prop\lben/ene 0.070 

2,3,4,6-Tetrachlorophenol 0.2 1 

1,2,3-Trichloropropane 5.0 x 10" 

I,l,2-Trichloro-l,2,2-trifluoroethane(CFC-113) 210.0 

1.2,4-Trimethylbenzene 0.350 

1 ,3,5-Trimethylbenzene 0.350 

♦- Interim Maximum Allowable Concentrations for these thirty-eight substances are currently in effect pursuant to title 15A 
NCAC 2L .0202(c). These concentrations will remain in effect until changes are made to 15A NCAC 2L .0202 in accordance 
with the rulemaking requirements of North Carolina General Statute 150B. Permanent rulemaking to implement 
Groundwater Quality Standards for these substances is necessary pursuant to the requirements of 15A NCAC 2L .0202. 

£<- The three alkane carbon fraction classes were established as interim maximum allowable concentrations under 15A NCAC 
2L .0202 in order to implement risk based corrective action for petroleum underground storage tanks. ISA NCAC 2L .0202 
requires that once an interim maximum allowable concentration is established . the Director of the Division of Water Quality 
must take action to initiate rulemaking to provide a permanent Groundwater Quality Standard for that substance. The Division of 
Public Health (formerly the Division of Epidemiology) recommended concentrations for these substances on January 26. 1998 
pursuant to I'SEPA guidance. After the concentrations were established, the US EPA provided updated guidance for the use of 
carbon fraction classes in risk based assessments and corrective action. On February 5. 1998. the Division of Public Health 
recommended that petroleum aliphatic carbon fraction classes be used to replace these substances. The Division of Public 
Health was concerned that specifying only the alkane carbon fraction classes was not inclusive of other aliphatic carbon fractions 
such as alkenes and alkynes associated with petroleum releases. The amendment to the Groundwater Quality Standards in I5A 
NCAC 2L .0202 that will be presented to the public at hearing will provide the alkane carbon fraction classes with the petroleum 
aliphatic carbon fraction classes. The public notice of these new standards will specif} that the Division of Water Quality 
anticipates that the alkane carbon fraction classes will no longer appear in the text of the rule after public hearing is held. 
Pursuant to I5A NCAC 2L .0202. interim maximum allowable concentrations for the alkane carbon fraction classes will remain 
in place until final rules are adopted pursuant to North Carolina General Statute I5()B. The final text of the rule will cither show- 
that the alkane carbon fraction classes have either been adopted or deleted from the amendment. 

> - The Aromatics Carbon Fraction Class C9-C32 was established as an interim maximum allowable concentration under I5A 
NCAC 2L .0202 in order to implement risk based corrective action for petroleum underground storage tanks. I5A NCAC 2L 
.0202 requires that once an interim maximum allowable concentration is established . the Director of the Division of Water 
Quality must take action to initiate rulemaking to provide a permanent Groundwater Quality Standard for that substance. The 
Division of Public Health recommended a concentration for this substance on January 26. 1998 pursuant to USEPA guidance. 
After the concentrations were established, the US EPA provided updated guidance for the use of carbon fraction classes in risk 
based assessments and corrective action. On February 5, 1998. the Division of Public Health recommended an interim maximum 
allowable concentration and Groundwater Quality Standard for the Petroleum Aromatics Carbon Fraction Class C9-C22. This 
recommendation was made because aromatic carbon fractions above C22 are not generally associated with petroleum releases. 
The Division of Public Health and the Division of Waste Management-Underground Storage Tank Section has informed us that 
the current interim maximum allowable concentration for the Aromatics Carbon Fraction Class C9-C32 was of a class and 
carbon range inclusive of the proposed Petroleum Aromatics Carbon Fraction Class C9-C22. Based on discussions and a 
recommendation by the North Carolina Attorney General's Office, the Division did not establish an interim maximum allowable 
concentration for the Petroleum Aromatics Carbon Fraction Class C9-C22. The amendment to the Groundwater Quality 
Standards in ISA NCAC 2L .0202 that will be presented to the public at hearing will provide the Aromatics Carbon Fraction 
Class C9-C32. The public notice of this new standard will specif) that the Division of Water Quality anticipates that the 
Aromatics Carbon Fraction Class C9-C32 will be deleted and replaced by Petroleum Aromatics Carbon Fraction Class C9-C22 
in the text of the rule after the hearing has been held. The proposed concentration level for the Petroleum Aromatics Carbon 
Fraction Class C9-C22 will be 0.2 10 milligrams per liter. This concentration is the same as the interim maximum allowable 
concentration for the Aromatics Carbon Fraction Class C9-C32. Pursuant to 15A NCAC 2L .0202. interim maximum allowable 
concentrations for the Aromatics Carbon Fraction Class C9-C32 will remain in place until final rules are adopted pursuant to 
North Carolina General Statute I50B. The final text of the rule will show the Aromatics Carbon Fraction Class C9-C32. the 
Petroleum Aromatics Carbon Fraction Class C9-C22. or both the Aromatics Carbon Fraction Class C9-C32 and the Petroleum 
Aromatics Carbon Fraction Class C9-C22 with the appropriate concentration level. 
**- The Endosufan II specified here is the technical grade of the substance also known as beta-endosulfan. 



14:10 NORTH CAROLINA REGISTER November 15, 1999 747 



RULE-MAKING PROCEEDINGS 



O - The concentration level for Endrin represents total Endrin consisting of endrin, endrin aldehyde, and endrin ketone. 

A - The concentration level for Hexachlorocyclohexane represents total Hexachlorocyclohexane consisting of alpha, beta, delta. 

gamma, and epsilon isomers. 

II. Change the Biennial Review Requirement in I5A NCAC 2L .0202(f) to a Triennial Review Requirement : 

The Groundwater Section proposes that the biennial review I two years) required under 15A NCAC 2L .0202(f) for substances 
listed under ISA NCAC 2L .0202(g) and interim maximum allowable concentrations be amended in this rulemaking to specif,- a 
triennial review (three years). These reviews are conducted to make sure proposed amendments and additions to the standards in 
15A NCAC 2L .0202 are based on the most current health and toxicological information, to assist the Division in prioritizing 
rulemaking, and to make changes to ISA NCAC 2L .0202. It is proposed that the review period be extended to three years based 
on legislative revisions to the rulemaking process that were made in 1995. 
In 1995 the North Carolina General Assembly adopted changes to the rulemaking process contained in North Carolina General 
Statute (NCGS) I SOB. Among these revisions was a new requirement that rules undergo legislative review prior to becoming 
effective. Pursuant to the requirements of North Carolina General Statute 150B-21 .3(b), a permanent rule becomes effective "... 
on the earlier of the thirty-first legislative day or the day of adjournment of the next regular session of the General Assembly 

that begins qt_ least 25 days after the date the Commission (Rules Review Commission) approved the rule, ". If a rule does 

not complete the rulemaking procedures up through approval by the Rules Review Commission tRRC), pursuant to NCGS I SOB 
21.11. on or before the 2S' h day from when the General Assembly convenes, that rule will not be presented to the General 
Assembly for final action during that session. The rule max be acted upon by the General Assembly at the following session 
during the next year, provided that the proposed rule has met these requirements by the date specified in NCGS 150B. If a 
rulemaking completes RRC review shortly after a legislative session has begun, NCGS 1 SOB does not permit General Assembly 
review of the rule until the next session. This may result in significant delays in getting new Groundwater Quality Standards and 
changes to standards enacted. 

If final action by the North Carolina General Assembly on changes to the standards in ISA NCAC 2L .0202 is delayed to the later 
session, the necessary rule changes may not go into effect before another biennial review of the Groundwater Quality Standards 
is required pursuant to 15A NCAC 2L .0202(f). If this biennial review reveals no new information, then there would be no 
additional need for rulemaking and the rules before the North Carolina General Assembly would most likely be approved. 
However, if this biennial review reveals the need to change the numeric concentrations again or add new standards while the 
Groundwater Quality Standards are under review by the North Carolina General Assembly, the General Assembly would be 
placed in the position of approving amendments and adoptions to Groundwater Quality Standards that are based on outdated 
health and toxicological information. Under NCGS 150B-2 1.3(b) the legislature max introduce bills and act on bills to approve 
or disapprove rules, however, they are not allowed to amend rules or numeric standards. 
The current requirement for maintaining a biennial review of Groundwater Quality Standards in ISA NCAC 2L .0202 will likely 
result in continuous rulemaking under NCGS 150B while Groundwater Qualify Standards. Continued reliance on biennial review 
of Groundwater Quality Standard will cause confusion on the cleanup levels responsible parties need to meet in order to comply 
with the requirements of rules and the concentration levels that are protective for drinking water supplies. Please note that a 
triennial review period is consistent with the manner that surface water standards are developed in the title 15A NCAC 2B rules 

Reason for Proposed Action: The amendment to ISA NCAC 2L .0202, Groundwater Quality Standards, will establish 
groundwater standards for are Alkane Carbon Traction Class C5-C8, Alkane Carbon Fraction Class C9-C18, Alkane Carbon 
Fraction Class C19-C32, Amniotics Carbon Fraction Class C9-C32, Benzol b)fluoranthene. Benzol klfluoranthene 
Benzol a Ipyrene, sec-Butylbenzene. tert-Butylbenzene. n-Butylbenzene. Chloromethane, 2-Chlorotoluene. Dibenzla.h)anthracene. 
p.p'-Dichlorodiphenyl Dichloroethane IDDD). p.p'- Dichlorodiphenyltrichloro ethane (DDT). Dieldrin, 2.4-Dimethylphenol (m- 
xylenol), Disulfoton, Endosulfan II (beta-endosulfan). Endrin (Total Endrin: includes endrin, endrin aldehyde, and endrin 
ketone). Hexachlorocyclohexanef Total Hexachlorocyclohexane: includes alpha, beta, delta, gamma, and epsilon isomers), 
Indenof 1 ,2.3-cd)pyrene. lsophorone, Isopropxlbenz.ene. 2-Methyluaphthalene, 3-Methylphenol (m-cresol), 4-Methylphenol (p- 
cresol), N-Nitrosodimethylamine. Petroleum Aliphatic Carbon Fraction Class CS-C8, Petroleum Aliphatic Carbon Fraction 
Class C9-C18, Petroleum Aliphatic Carbon Fraction Class CI9-C36, Phorate, n-Propylbenzene, 2,3,4,6-Tetrachlorophenol, 
1,2,3-Trichloropropane. 1 . 1 ,2-Trichloro-l ,2.2-trifluoroethane (CFC-1 1 3), 1 ,2,4-Trimethylbenzene. and 1 ,3,5-TrimethyIbenz.ene. 
The proposed rule changes are being made to incorporate the most updated health information and concentration levels as 
Groundwater Quality Standards in ISA NCAC 2L .0202. 
A change in I5A NCAC 2L .0202(f) to replace the present biennial review period (two years) to a triennial review (three years) 
will: allow adequate time for Groundwater Quality Standards to he updated: allow revisions to standards to he made effective by 
the legislature within time frames that are realistic with respect to the rulemaking requirements of NCGS 150B: and enable staff 
to better prioritize work requirements with respect to the development of standards. 

Comment Procedures: All persons interested in this proposed amendment are encouraged to submit written comments or 
questions to David Hance. ENR-DEM: Groundwater Section. PO Box 29578. Raleigh, NC 27626-0578. Comments max also be 



748 NORTH CAROLINA REGISTER November 15, 1999 



RULE-MAKING PROCEEDINGS 



sent by fax transmission to Mr. Hance at (919) 715-0588 or via electronic mail to David. Hance<s ncmail.net. 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 

CHAPTER 50 - BOARD OF EXAMINERS OF 

PLUMBING. HEATING AND FIRE 

SPRINKLER CONTRACTORS 

-\ jotice of Rule-making Proceedings is hereby given by the 
1 V State Board of Examiners, of Plumbing, Heating and Fire 
Sprinkler Contractors in accordance with G.S. 150B-2L2. 
The agency shall subsequently publish in the Register the text 
of the rule it proposes to adopt as a result of this notice of 
rule-making proceedings and any comments received on this 
notice. 

Citation to Existing Rules Affected by this Rule-Making: 

21 NCAC 50 .0501. .1004. .1006. Other rules may be 
proposed in the course of the rule-making process. 

Authority for the rule-making: G.S. 87-18; 87-21(a)(3) 

Statement of the Subject Matter: Rules relative to 
clarification of Licensure requirements, minor repair 
exemptions and administrative hearing procedures. 

Reason for Proposed Action: Grant of Recent Petitions for 
Rule-making has occasioned review of rules, which m /// 
likewise be the subject of comment at an upcoming public 
hearing. 

Comment Procedures: Comment may be provided to the 
Board by mailing to the Board at 3801 Wake Forest Road. 
Suite 201, Raleigh. NC 27609. addressed to Rule-making 



Coordinator. 

CHAPTER 68 - CERTIFICATION BOARD 
FOR SUBSTANCE ABUSE PROFESSIONALS 

-\ jotice of Rule-making Proceedings is hereby given by the 
1 V NC Substance Abuse Professional Certification Board in 
accordance with G.S. I50B-21.2. The agency shall 
subsequently publish in the Register the text of the rule(s) it 
proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

21 NCAC 68 

Authority for the rule-making: G.S. 90. Article 5C 

Statement of the Subject Matter: Rules governing the 
certification of Substance Abuse Professionals 

Reason for Proposed Action: Legislation enacted by the 
1999 Session of the General Assembly amends Article 5C of 
Chapter 90 which regulates the certification of Substance 
Abuse Professionals. The Board will revise rules on hearing 
procedures and make further revisions of definitions, rules 
regarding substantive certification matters, and other 
clarifications of the current law and those prescribed by the 
new legislation. 

Comment Procedures: Written comments should be directed 
to Jim Scarborough. Board Administrator. PO Box 1026. 
Raleigh. NC 27605. 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



749 



PROPOSED RILES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a 
Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the 
publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment 
period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory 
reference: G.S. 150B-21.2. 



TITLE 10 - DEPARTMENT OF HEALTH AND 
HUMAN SERVICES 

Notice is hereby given in accordance with G.S. 150B-21 .2 
that the DHHS - Division of Medical Assistance intends to 
amend rules cited as 10 NCAC 50B .0102, .0313. Notice of 
Rule-making Proceedings was published in the Register on 
March 15, 1999. 

Proposed Effective Date: August 1, 2000 

A Public Hearing will he conducted at 1:30 pm on December 
16, 1999 at the Kirby Building. Room 132. 1985 Kirby Drive, 
Raleigh. NC. 

Reason for Proposed Action: 10 NCAC 50B .0102 

Designates groups of individuals below the poverty level who 
shall be eligible for Medicaid. 

10 NCAC 50B .0313 - Designates the income level for 
categorically needy. 

Comment Procedures: Written comments concerning this 
rule-making action must be submitted by January 14, 1999, to 
Portia Rochelle. Rule-making Coordinator, Division of 
Medical Assistance. 1985 U instead Drive. 2504 Mail Service 
Center, Raleigh. NC 27699-2504. 



Fiscal Impact 
State Local Sub. 

/ / / 



None 



CHAPTER 50 MEDICAL ASSISTANCE 

SUBCHAPTER 50B - ELIGIBILITY 
DETERMINATION 

SECTION .0100 - COVERAGE GROUPS 

.0102 OPTIONAL 

The following optional groups of individuals described by 
42 U.S.C. 1396a(a)(10)(A)(ii)and42U.S.C. 1396a(a)(10)(C) 

shall be eligible for Medicaid: 
( 1 ) Children: 

(a) Children under age one whose family income 
is more than the amount established under 
Item (14). Rule .0101 of this Section and not 
more than a percent of the federal poverty 
level established by the General Assembly; 

(b) Children under aee 21 who meet the 



(c) 



(d) 



(2) 

(3) 
(4) 



(5) 



eligibility requirements of this Subchapter; 
Qualified children under age 19 as described 
in Item (4). Rule .0101 of this Section, who 
were born on or before September 30. 1983, 
and whose income is not more than 1007c of 
the federal poverty level: 
Adopted children under age 18 with special 
needs, as described at 42 U.S.C. 
1396a(a)(10)(A)(ii)CvTH). 

Individuals receiving optional state supplemental 

payment. 

Caretaker relatives of eligible dependent children. 

Pregnant women: 

(a) Whose countable income is more than the 
amount established under Item (13). Rule 
.0101 of this Section and not more than a 
percent of the federal poverty level 
established by the General Assembly, or 

(b) Who. if their countable income exceeds the 
percent of the federal poverty level, 
established in Sub-item (4)(a) of this Rule, 
meet the eligibility criteria for medically 
needy set forth in this Subchapter. 

Aaed, blind and disabled individuals whose income 



is at or below 1 007 of the Federal Poverty Level. 



adjusted each April _L and who meet the income 
and resource requirements of SSI. but who do not 
receive cash assistance. 

Authority G.S 108A-54; 42 U.S.C 1396(a)(10)(A)(ii); 42 
U.S.C. 1396a(a)(10)(C);42 C.FR. 435.210; 42 CF.R. 
435.222: 42 CF.R. 435.230: 42 CF.R. 435.301:42 CF.R. 
435.308; 42 CF.R. 435.322; 42 CF.R. 435.330; S.L. 1983, c. 
1034. s. 62.2; S.L. 1987. c. 738. s. 69 and 70; S.L. 1989, c. 
752. s. 133. 

SECTION .0300 - CONDITIONS FOR ELIGIBILITY 



.0313 INCOME 

(a) For family and children's cases, income from 
following sources shall be counted in the calculation 
financial eligibility: 
( 1 ) Unearned. 

(A) RSDI. 

(B) Veteran's Administration, 

(C) Railroad Retirement, 

( D ) Pensions or retirement benefits. 

(E) Workmen's Compensation, 

(F) Unemployment Compensation. 

(G) Support Payments. 



the 
of 



750 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



PROPOSED RULES 



Contributions. 

Dividends or interest from stocks, bonds, and 

other investments. 

Trust fund income. 

Private disability or employment 

compensation. 

That portion of educational loans, grants, and 

scholarships for maintenance. 

Work release. 

Lump sum payments. 

Military allotments. 

Brown Lung Benefits. 

Black Lung Benefits. 

Trade Adjustment benefits. 

SSI when the client is in long term care. 

VA Aid and Attendance when the client is in 

long term care. 

Foster Care Board payments in excess of state 

maximum rates for M-AF clients who serve 

as foster parents. 

Income allocated from an institutionalized 

spouse to the client who is the community 

spouse as stated in 42 U.S.C. 1396r-5(d). 

Income allowed from an institutionalized 

spouse to the client who is a dependent 

family member as stated in 42 U.S.C. 

1396r-5(d). 

Sheltered Workshop Income. 

Loans if repayment of a loan and not counted 

in reserve. 

Income deemed to Family and Children's 

clients. 

(2) Earned Income. 
(A) Income from wages. salaries. and 

commissions. 

Farm Income. 

Small business income including 

self-employment. 

Rental income. 

Income from roomers and boarders. 

Earned income of a child client who is a 

part-time student and a full-time employee, 

Supplemental payments in excess of state 

maximum rates for Foster Care Board 

payments paid by the county to FamiK and 

Children's clients who serve as foster parents. 

VA Aid and Attendance paid to a budget unit 

member who provides the aid and attendance. 

(3) Additional sources of income not listed in 
Subparagraphs (a)(1) or (2) of this Rule will be 
considered available unless specifically excluded by 
Paragraph (b) of this Rule, or b\ regulation or 
statute. 

(b) For family and children's cases, income from the 
following sources shall not be counted in the calculation of 
financial eligibility: 



(H) 

(I) 

(J) 
(K) 

(L) 

(M) 
(N) 
(O) 
(P) 
(Q) 
(R) 
(Si 
(T) 

(U) 



(V) 



(W 



(X) 
(Y) 

(Z) 



(B) 

(C) 

(D) 
(E) 
(F) 

(G) 



(H) 



( 1 ) Earned income of a child who is a part-time student 
but is not a full-time employee; 

(2) Earned income of a child who is a full-time student: 

(3) Incentive payments and training allowances made to 
WIN training participants: 

(4) Payments for supportive services or reimbursement 
of out-of-pocket expenses made to volunteers 
serving as VISTA volunteers, foster grandparents, 
senior health aides, senior companions. Service 
Corps of Retired Executives, Active Corps of 
Executives. Retired Senior Volunteer Programs. 
Action Cooperative Volunteer Program, University 
Year for Action Program, and other programs under 
Titles I. II. and III of Public Law 93-1 13; 

(5) Foster Care Board payments equal to or below the 
state maximum rates for Family and Children's 
clients who serve as foster parents: 

(6) Income that is unpredictable, i.e.. unplanned and 
arising only from time to time. Examples include 
occasional yard work and sporadic babysitting: 

( 7 ) Relocation payments: 

(8) Value of the coupon allotment under the Food 
Stamp Program: 

(9) Food (vegetables, dairy products, and meat) grown 
by or given to a member of the household. The 
amount received from the sale of home grown 
produce is earned income: 

(10) Benefits received from the Nutrition Program for the 
Elderly: 

(11) Food Assistance under the Child Nutrition Act and 
National School Lunch Act; 

(12) Assistance provided in cash or in kind under any 
governmental, civic, or charitable organization 
whose purpose is to provide social services or 
vocational rehabilitation. This includes V.R. 
incentive payments for training, education and 
allowance for dependents, grants for tuition, chore 
services under Title XX of the Social Security Act. 
VA aid and attendance or aid to the home bound if 
the individual is in a private living arrangement: 

(13) Loans or grants such as the GI Bill, civic, honorary 
and fraternal club scholarships, loans, or 
scholarships granted from private donations to the 
college, etc.. except for any portion used or 
designated for maintenance; 

(14) Loans, grants, or scholarships to undergraduates for 
educational purposes made or insured under any 
program administered by the U.S. Department of 
Education; 

(15) Benefits received under Title VII of the Older 
Americans Act of 1965: 

( 16) Payments received under the Experimental Housing 
Allowance Program (EHAP); 

(17) In-kind shelter and utility contributions paid directly 
to the supplier. For Family and Children's cases, 
shelter, utilities, or household furnishings made 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



751 



PROPOSED RULES 



available to the client at no cost; 
(IX) Food/clothing contributions in Family and 
Children's cases (except for food allowance for 
persons temporarily absent in medical facilities up 
to 12 months); 

(19) Income of a child under 21 in the budget unit who is 
participating in JTPA and is receiving as a child; 

(20) Housing Improvement Grants approved by the N.C. 
Commission of Indian Affairs or funds distributed 
per capital or held in trust for Indian tribe members 
under P.L. 92-254, P.L. 93- 1 34 or P.L. 94-540; 

(21) Payments to Indian tribe members as permitted 
under P.L. 94-114; 

(22) Payments made by Medicare to a home renal 
dialysis patient as medical benefits; 

(23) SSI except for individuals in long term care: 

(24) HUD Section 8 benefits when paid directly to the 
supplier or jointly to the supplier and client; 

(25) Benefits received by a client who is a representative 
payee for another individual who is incompetent or 
incapable of handling his affairs. Such benefits 
must be accounted for separate from the payee's 
own income and resources: 

(26) Special one lime payments such as energy, 
weatherization assistance, or disaster assistance that 
is not designated as medical: 

(27) The value of the U.S. Department of Agriculture 
donated foods (surplus commodities): 

(28) Payments under the Alaska Native Claims 
Settlement Act. Public Law 92-203; 

(29) Any payment received under Title II of the Uniform 
Relocation Assistance and Real Property 
Acquisition Policies Act of 1970; 

(30) HUD Community Development Block Grant funds 
received to finance the renovation of a privately 
owned residence: 

(31) Reimbursement for transportation expenses incurred 
as a result of participation in the Community Work 
Experience Program or for use of client's own 
vehicle to obtain medical care or treatment; 

(32) Adoption assistance; 

(33) Incentive payments made to a client participating in 
a vocational rehabilitation program; 

( 34 ) Title XX funds received to pay for services rendered 
by another individual or agency; 

( 35 ) Any amount received as a refund of taxes paid: 

(36) The first fifty-dollars ($50) of each child 
support/spousal obligation or military allotment paid 
monthly to the budget unit in a private living 
arrangement. 

(c) For aged, blind, and disabled cases, income counted in 
the determination of financial eligibility is based on standards 
and methodologies in Title XVI of the Social Security Act. 

(d) For aged, blind, and disabled cases, income from the 
following sources shall not be counted: 

( 1 ) Any Cost of Living Allowance (COLA) increase or 
receipt of RSDI benefit which resulted in the loss of 



SSI for those individuals described in Item (17) of 
Rule .0101 of this Subchapter. 
(2) Earnings for those individuals who have a plan for 
achieving self-support (PASS) that is approved by 
the Social Security Administration, 
(e) Income levels for purposes of establishing eligibility are 
those amounts approved by the N.C. General Assembly and 
stated in the Appropriations Act for categorically needy and 
medically needy classifications, except for the following: 

( 1 ) The income level shall be reduced by one-third 
when an aged, blind or disabled individual lives in 
the household of another person and does not pay 
his proportionate share of household expenses. The 
one-third reduction shall not apply to children under 
nineteen years of age who live in the home of their 
parents: 

(2) An individual living in a long term care facility or 
other medical institution shall be allowed as income 
level a deduction for personal needs described under 
Rule .0314 (Personal Needs Allowance) of this 
Subchapter: 

(3) The categorically needy income level for an aged, 
blind, and disabled individual or couple is the SSI 
individual or couple amount. — This is the current 
Fed e ral Benefit Rate (FBR). 100% of the Federal 
Poverty Level: 

(4) The income level to be applied for Qualified 
Medicare Beneficiaries described in 42 U.S.C. 
1396d and individuals described in 42 U.S.C. 1396e 
is based on the income level for one: or two for a 
married couple who live together and both receive 
Medicare. 

Authority G.S. 108A-25(b); 108A-61; 42 C.F.R. 435.135; 42 

C.F.R. 435.731; 42 C.F.R. 435.732; 42 C.F.R 435.733; 42 
C.F.R. 435.811: 42 C.F.R. 435.812: 42 C.F.R. 435.831; 42 
C.F.R. 435.832; 42 C.F.R. 435.1007; 42 U.S.C. 1383c(b); 42 
U.S.C. 1383c(d): 45 C.F.R. 233.20; P.L. 99-272. 



TITLE 11 - DEPARTMENT OF INSURANCE 

Notice is herein given in accordance with G.S. 150B-21 .2 
that the NC Department of Insurance intends to repeal the 
rules cited as 11 NCAC 6B .0201 -.0205. .0301 -.0304. .0401- 
.0405. Notice of Rule-making Proceedings was published in 
the Register on November 3. 1997. 

Proposed Effective Date: July 1. 2000 

Instructions on How to Demand a Public Hearing (must be 
requested in writing within 15 days of notice): Make a request 
in writing to Ellen K. Sprenkel. NC Department of Insurance, 
PO Box 26387. Raleigh. NC 27611. 

Reason for Proposed Action: The statutes under which these 



752 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



PROPOSED RULES 



rules were adopted have been repealed. 

Comment Procedures: Written comments may be sent to 
Ellen K. Sprenkel. NC Department of Insurance, PO Box 
26387, Raleigh, NC 27611. Written comments must he 
received by the Department on or before December 15, 1999. 



Fiscal Impact 
State Local 



Sub. 



None 



CHAPTER 6 - AGENT SERVICES DIVISION 

SUBCHAPTER 6B - THIRD PARTY 
ADMINISTRATOR 

SECTION .0200 - REGISTRATION 

.0201 CONTENTS OF FULL APPLICATION 

AH — applications — tni — an — administrator — c er t i fie ate — of 



registration must i n clude : 

t~b an — application — for — administrato r 's — re gistr ation 

(TPA-1-87) signed b y a n office r , i t ' a c orp oration, or 
ev e r y partner, if a partne r sh ip , o r t he o wner and 
o p e r at in g m a n ager, if a sole prop r ieto r s hi p: 

(2) bi og r a ph ical — form(s) — (TPA-2-87) — rRcr — 6tWi 

com pl e t ed by e very office r , pa r t n er, o r owner and 
operating — manage r as indicated. — forms may — be 
du p licated to m eet needs; 

t3l copies of each type of service co n tract utilized for 

b e n efit pla n s mhTrmis tc re d cove rin g North Carolina 
r es i dents: 

H~) f i nancial state me nts must include a balance sh e et, a 

statement of i nco m e a n d a statement of cas h flows 



yean 




Financ 

of an audit, a review, o 



prepared by 



an — independent — certified — pub l ic — accountant. 
Financial state m ents of a n admi n istrato r 's -parent 
company — are — acceptable — ff — such — pre se n t 
consolidating schedules for the ad mini st r ato r , and if 
the certified pub l ic - a cc o un tant's o r Ario i ri etterdoes 
not disc l a i m association — wrth — the conso l i d ating 
schedules; 

f5l a su r ety bo n d in an amount of o n e hu n d r ed thousand 

dolla r s ( SI O O.OOO) or mo r e issued in the n ame of the 
administrat or w ri tten by a company l i ce n sed to do 
business in North Ca r olina. — The sur e ty bond is 
co n ditioned upo n the pe r formance b y ad mini st r a t o r s 



of their obl i ga ti o n to insurers, se l f-lund c 



-and 



tunders 

partic ip ants tinder the ir service contracts, a n d the i r 
c o mp l i a nce with the requir e m en t o f A i ti ck - 41 of 
Chaptei 58 of the General — S t a t u tes — rrt — North 
Caroli n a , 



r on n a as we l l as any applicable rul e s. A copy or 
the — surety — bond — form — fs — enclosed — with — the 
applicat i o n tm d r enew al packag e ; 



(6) all b asic organizatio n al documents of the third party 

a dministrator, suc h as the art i cles of i ncorporatio n , 
bylaws, partnership ag r ee me nts a n d all o t her similai 
docume n ts and all amend m e nt s t o those documents: 

fft a n a rr at i ve descriptio n sp e c i fy i n g- adminisliatoi's 

ser vices performed i n Nort h Carolina ; 



rRt- 



rted — bx — the 



~a — power — of — attorney — duty — exe cu t ed — try — me 
a d mini strato r , if n ot dom i ciled in North Caro l ina, 
appo i nt i ng the Comm i ssion er of Insura n ce, and the 
C ommissio n er's — chrry — autho r iz e d — deputies — as 
attorneys - fo r the administ r ato r in and for this slate. 



upon — whom — pr oce ss — m — any — legal — action — or 
proceedi ng against t h e ad m i n istrato r on a cause of 



action arisi n g i n this state may b e served: (fo rm 
en c l osed in applicatio n a n d r e n ewal pa ck ag e) . 

(9) a company check o r money o r der in the amount of 

twenty dollars (520.00). r e g i s tr ation fee. p ayable to 
t h e North Carolina De p a r t m e n t of I n su r ance, and 



r+01 suc h other infor m a ti on a s 

re as on a b ly require. 



the department — may 



Authority G.S. 58-9; 58-525; 58-527; 58-529; 58-532; 58-536. 

.0202 MODIFICATION OF APPLICATION 

Within 36 days following a sig n if i cant modificat i on of a n v 



-the — inloi illation — su b mitted 



or — trie — imormatioii — s ti n mittea — WTtfi — an- application — for — a 
certificate of r egistration, the admi n is tr ato r shall file a notice 
o f the m od il ication(s) with t h e Ag en t Se r vic e s Division. 



Authority G.S. 58-9; 58-525; 58-527; 58-529; 58-532; 58-536. 

.0203 DURATION OF INITIAL CERTIFICATE OF 
REGISTRATION 

The i n itial ce r tificate of registration w i l l aut h orize the 
admin i strator to operate in North Carolina from the date of 
issue unt i l August 3 1 next following the dale of i ssu e . The fee 
of twe n ty dol l a r s (S20.00) will not b e p r o-rated. 

Authority G.S. 58-536; 59-9. 

.0204 APPLICATION FOR RENEWAL OF A 
CERTIFICATE OF REGISTRATION 

All ap p l i ca t io ns for renewal of a certificate of r egist r atio n 
must i nclude : 

r+i ap p licat i on for admi n ist r ato r 's re n ewal registration 

t2l ah — changes — to — the — in for m at i o n — contained — m 

biograph i cal form(s) (TPA-2-87) (R e v. 6/89); 

all c h a n ges o r additions to ow n e r sh i p, o r ga n izatio n a l 

st r uctu r e o r location of the admi n ist r ato r; 



tfH 



r4i all changes o r additio n s to the s e rvic e co ntr acts 

ente r ed int o by th e admi n istra t o r : 
t5l financ i al statements must i n clude a balance sheet. 

stat e m e n t of - income and a stat em e n t of cash flows 



l o r me administ r ators mos t re ce nt lu l l tiscal yea r . 
F in ancial statements must be p r es e nte d m t h e fo r m 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



753 



PROPOSED RULES 



o f an audit, a review, or a compilat i on prepared by 
an — i n de p endent — certified — public — accountant. 
Fi n a n c i al -st ateme n ts of a n adm i nistrator's parent 
com p a n y — are — acceptable — rf — STjrh — present 



.0302 DETERMINATION OF FINANCIAL 
RESPONSIBILITY 



In determini n g the fina n c i al r e sponsibility of an applicant 






:hedules for the administ r ator, and i f 



consol i dati n g schedules lo r tne aamin i s 

the certified public accou n tant's op in io n letter does 



not — disclaim asso . 
sch edul e s ; 



a t io n — wTth — the — consolidating 



to r a c er l i licate of registratio n , t he depart m e n t r equires tha t an 
applican t be solvent. In addition, the d epartme nt will conside r , 
amo n g other things: 
Hi liquidity, and 



ei- 



- h u n dred thousa n d 



t6) a su r ely bond in an a m ou n t of one nundrec 

do l lars (SI 00.000) or m o re issued in the n ame of the 



any internal controls the applicant may have in place 
to affo r d pro t ection for benefit plans, which may 



tmrh 



admin i stiator writte n-hv- 



sed to 



a co mp a n y duly license 
do business in North Ca r ol i na. Th e surety bond is 
co n d i tioned upon the perfo r mance by administrato r s 
of th e i r obligation to i nsui e is. s e lf-funders and 
participants under their s er vice contracts, and thei r .0303 
complia n c e w it h the requi rem ent of Article 41 of 
Chapter 58 of the Ge n eral S t atutes of Nort h 
Carol in a a s w el l as a n y applicable r ul e s. A co p y o f 
the — su r ety — bond — form — rs — enc l osed — with — the 
application a n d renewal pa c kage; and 



includ e , b ut a re not limit e d to. the manner in wnn 
b e ne f i t pla n fu n d accounts a re e stab li s he d. 

Authority G.S. 58-9; 58-532; 58-536. 



FINANCIAL INFORMATION PUBLIC 
RECORDS 



All financial inhumation filed in su p po r t of a n application 



for init i al issuance or r e n ewal of a ce r tif i cate of r egistration 



wil l be su b ject to th e public records law of North Ca r oli n a. 
Suc h in formation w i ll n ot be r e l e ased by the depa r t m ent until 



m 



a compa n y check o r money o r de r i n tne 
twenty dollars (S20.00). r enewal registration fee 
payable — to — the — North — Caroli n a — Department — ol 
Insurance. 



Authority G.S. 58-9; 58-525; 58-527; 58-529; 58-532; 58-536. 



the amount of" r eg i st r ation is accompl i shed a n d a certificate issued. — In the 



.0205 



The 



RENEWAL CERTIFICATE OF 
REGISTRATION 



a n d a c er titicate issue 
event thai the application is withdraw n f r o m consideration by 
the applicant, then i t will not be deemed public in l 'uimation. 

Authority G.S. 58-9; 58-11; 132-6. 

.0304 SURETY BOND ISSUED BY LICENSED 
COMPANY 



The surety bo n d r equired by G.S. 58-5361 b ) must be issued 



ie re n ewal date for all cert i ficates of regist r ation will be h v a n in surance compa n y licensed to do busi ne ss in Nor t h 
September 1 ; — Renewal packages will be sent to re g i ste r ed 



Can 



-the 



administrators on July — 1 — a n d should b e re tu rn ed to the 
Department of I n su r a n c e . Age n t Services Divisi o n. Registrar. 
P.O. Box 26387, Raleigh. N.C. 276 1 1. no lat e r tha n Au g ust 
-hO: 

Authority G.S. 58-9; 58-536. 

SECTION .0300 - FINANCIAL REQUIREMENTS 

.0301 FINANCIAL STATEMENTS 

All applicants for a c e rtificat e of registrat i on m ust til e 
fi nanc i al statements with their in i tial and rene wal applications. 
Financial stateme n ts must include a ba l a n c e sheet, a statement 
of income and a s t ate men t of cash Hows for the admi ni st r a t o r ' s 
most recent full fiscal yea r . — Financial statements must be 
prese n ted in the form of an aud i t, a review, or a compilation 
p r epa re d by an — ind e pe n dent c e rtified p ubl i c — accountant. 
Fi n ancial stat em e n ts of an administra tor 's pa r ent company are 
acc ep tabl e if such p r esent consolidating sc h edu l es for the 
ad mi n i st r ato r , a n d i f the c er t i fied public accou n tant's opinio n 
letter does n ot disclai m association with the consolidati n g 
schedules. 

Authority G.S. 58-9; 58-536; Eff. November 1. 1988. 



ml ma. The — surety — bon d — is — conditioned — upon 

performa n c e by administ r ators of thei r obligation to insurers. 



self-funders and pa r tic i pa n ts unde r the ir sen ice c o n tr acts, and 



the ir c ompliance with the r equi r e men t of Art i cle 41 of Chapte r 
58 of the G en e r al Statutes of North Carolina as well as any 
applicable r ules. 

Authority G.S. 58-9: 58-15; 58-29; 58-536. 

SECTION .0400 - GENERAL PROVISIONS 

.0401 SERVICE CONTRACTS WITH INSURANCE 
COMPANIES 



All se r vice co n t r acts with insurance compani e s must be with 
insu r ers licensed to ope r ate in No r th Ca r olina. 

Authority G.S. 58-9; 58-15; 58-527. 



.0402 ADJUSTING CLAIMS BY 
ADMINISTRATORS 



No ad j uste r 's lic e nse will be re q uir e d of persons acting to r 
ad mi nistrato r s i n ad i ust i ng claims for life, accident an d health 
and annui t y claims or self-funded health b enefit plans. 

Authority G.S. 58-9: 58-529; 58-533; 58-61 Kb). 



754 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



PROPOSED RULES 



.0403 VIOLATIONS: PENALTIES 

The department shall follow the p r ovisions of G.S. 58-9.7 
for the imposi ti on of c i vil p e nalt i es against any admi n ist r ator 
that does not o btai n a certificate of registrat i on pr i or to 
beginning i ts o p er ations in this s t ale in accordance with 
Chapt er 58. A rticl e 41 of the North Carolina General Statutes. 

Authority G.S. 58-9; 58-9.7; 58-536. 

.0404 DEFINITIONS 

(a) "Related p arty" means principal owne r of the i n suranc e 
company: members of the insurance company's management: 
members of the immediate fami l ies of the principal owners of 
the insurance company and its management: members of a 
party wi t h which the insurance company may deal if one party 
co n t r ols o r can s ig ni f ica n tly influence th e - management or 
ope r ati n g policies of t h e othe r t o a n e xt e nt t hat one of the 
t r a n sacti n g parties mi ght b e p re v en t e d f r o m fully pursuing i ts 
own — sepa r at e — inte r ests : — me m be r s — of — a — party — that — can 



s i g ni fica n t l y m t luencc th e m anag e m en t or o p e r a ti ng po li c i es 
o f a n y tr a n sact i ng parties: m embe r s with an ow ner s hi p i nte r est 
in o ne of t he tr a n sact in g pa r ties and who can significant ly 
influ e nce th e ot h e r pa rt y so that o n e or mo r e of the transacting 
parti es m ay be p re ve n t e d from fu l ly pursuing i ts own separate 
interests: — i n div i duals — legally — or — be neficially — owning — any 
outstand i ng voting slock : 

fir) — "Su r e t y bo n d" means co v e r age for the subscribers of a 
self-fund e d o r f ul l y-i n su r ed pla n issued by a company licensed 
to do business in this State. 

Authority G.S. 58-9; 58-530; 58-536. 

.0405 PAYMENT OF CLAIMS 

rai — Evidence of co m petency of an administrator shall 
include, but will n ot be l i m i ted to. processing and payment of 
claims in a timely ma n ne r . 



(h) If claims filed wit h an adm i nistrator 



have not 



claims tiled vvit n an adm i nistrator or insurer 
bee n paid with i n 30 days after r e c eip t of the initial claim b y 
the adm i n i strator or the in sure r , the admin i strator or the insu r er 
shall at t hat lime m ail a cla i m s tatu s report to the cla i mant . 

Authority G.S. 58-9; 58-530. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 150B-21 .2 
that the DENR - Environmental Management Commission 
intends to adopt the rules cited as ISA NCAC 2S .0101 -.0102. 
.0201 -.0202. Notice of Rule-making Proceedings was 
published in the Register on August 16. 1999. 

Proposed Effective Date: August 1. 2000 

A Public Hearing will be conducted at 7:00 p.m. on 



November 30. 1999 at the Archdale Building. Groundfloor 
Hearing Room, 512 N. Salisbury Street. Raleigh, NC. 

Reason for Proposed Action: The Dry-Cleaning Solvent 
Cleanup Act I Act) of 1997 (G.S. 143-21 5. 104A et seq. ) created 
the Dry-Cleaning Solvent Cleanup Fund Program (Program) 
and directed the Environmental Management Commission 
(EMC) to engage in rulemaking necessary to administer the 
Program. The Act was sponsored by the dry-cleaning industry- 
through a lobbying effort by the North Carolina Association of 
Launderers and Cleaners, a trade association. Traditional 
solvent handling procedures practiced by the industry have 
proven to be inadequate to prevent solvent releases to the 
environment. As a result, groundwater has been contaminated 
at a considerable but unknown percentage of these facilities. 
The proposed rules govern safe solvent-handling procedures 
(Minimum Management Practices) for diy-cleaning facilities 
and wholesale distributors of dry-cleaning solvent. The 
proposed rules set forth dry-cleaning solvent handling 
practices that will minimize the risk of future releases of 
solvent to the environment. Therefore, these rules may be 
considered pollution prevention requirements. 

Comment Procedures: The purpose of this announcement is 
to encourage those interested in this proposal to provide 
comments. You may attend the public hearing and make 
verbal comments or submit written comments by December 
15, 1999. The Hearing Officer may limit the length of time 
that you may speak at the public hearing if necessary, so that 
all who wish to speak may have the opportunity to do so. The 
EMC is interested in all comments pertaining to the proposal. 
Comments should be mailed to: Lisa Tuber. NC Division of 
Waste Management. 401 Oberlin Road, Suite 150. Raleigh, 
NC 27605-1350. 



Fiscal Impact 
State Local 



Sub. 



None 
/ 



CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2S - RULES AND CRITERIA FOR THE 

ADMINISTRATION OF THE 

DRY-CLEANING SOLVENT CLEANUP FUND 

SECTION .0100 - GENERAL CONSIDERATIONS AND 
DEFINITIONS 



.0101 AUTHORIZATION 

[a] G.S. 143-2 15. HMD authorizes and directs the 
Commission to develop and adopt rules as are necessary m the 
administration of the Drv-Clcaning Solvent Cleanup Fund. 
These Rules: 

1 1 ) Establish minimum management practices lor the 
handling of drv-clcaning solvent at dry-cleaning 
facilities and wholesale distribution facilities. 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



755 



PROPOSED RULES 



ill 



Ql 



£4) 



(5} 



Establish a risk-hased approach applicable to the 
assessment, prioritization, and remediation of drv- 
cleaning solvent contamination resulting from 
releases at certified facilities or certified abandoned 
sites. 

Establish the terms and conditions of dry-cleaning 
solvent Assessment Agreements and Remediation 
Agreements. 

Determine whether assessment or remediation is 
necessary at certified dry-cleaning facilities, 
certified wholesale distribution facilities, or certified 
abandoned dry-cleaning facility sites. 
Prioritize certified dry-cleaning facilities, certified 
wholesale distribution facilities, or certified 
abandoned dr\ -cleaning facility sites lor the 
reimbursement from the Fund of assessment or 
remediation activities. 



(6) 

m 

£8} 



Establish strategies for the assessment and 
remediation of drv-cleaning solvent contamination. 
Schedule funding of assessment and remediation 
activities. 



Determine that all necessary assessment and 



remediation have been completed at a contamination 

site, 
(b) All rules adopted bv the Commission shall be consistent 
with G.S 143-2 15. 1 04 A et seq., the Drv-Cleaning Solvent 
Cleanup Act of 1997 and rules adopted bv the Commission for 
Health Services pursuant to G.S. 130A. Article 9. 

Authority G.S. 150B-21.2; I43-215.104D(b). 

.0102 DEFINITIONS 

The definition of any word or phrase used in these Rules 
shall be the same as given in G.S. 143-2 1 5. 1 04B except that 
the following words and phrases shall have the following 
meanings: 

( 1 ) "Number of fuH time employees" is equivalent to 
the total hours worked by aj] persons employed by a 
company or corporation in the previous vear divided 
by 40 hours per week. 

(2) "Impervious" means a material that is specifically 
manufactured tor the containment of dr\ -cleaning 
solvent. 

(3) "Spill containment" means a structure constructed of 
steel with welded seams or a product specifically 
manufactured to prevent the release of dr\ -cleaning 
solvent. 

Authority G.S. 150B-21.2; 143-215.104D(b). 

SECTION .0200 - MINIMUM MANAGEMENT 
PRACTICES 

.0201 APPLICABILITY 

The provisions contained in this Subchapter set forth the 
minimum management practices for the storage and handling 
of dr\ -cleaning solvents required to be implemented at al] drv- 



cleaning facilities and dry-cleaning solvent wholesale 
distribution facilities in order for those facilities to be eligible 
for certification into the Drv-Cleaning Solvent Cleanup 
Program. These Rules are applicable only to owners and 
operators of drv-cleaning facilities or drv-cleaning solvent 
wholesale distribution facilities. 



Authority G.S. 150B-21.2; 143-215. 104D(b), 

.0202 REQUIRED MINIMUM MANAGEMENT 
PRACTICES 

(a) Any abandoned site, as defined by G.S. 143- 
215.1 ()4(B )(h>( 1 ). wishing to enter into the Drv-Cleaning 
Solvent Cleanup Program shall demonstrate, at ah times after 
this Rule becomes effective, compliance with Minimum 
Management Practice Subparagraph (h)(5) of thus Rule. 

(b) All currently operating dr\ -cleaning, or wholesale 
distribution facilities wishing to enter into the Drv-Cleaning 
Solvent Cleanup Program shall demonstrate, at ah times after 
this Rule becomes effective, compliance with the following 
minimum management practices: 

( 1 ) At no time shall any drv-cleaning solvent, wastes 
containing drv-cleaning solvent, or water containing 
dry-cleaning solvent be discharged onto land or into 
waters of the State, sanitary sewers, storm drains, 
floor drains, septic systems, boilers, or cooling- 
towers. All receipts generated as a result of disposal 
of aH drv-cleaning solvent waste shall be made 
available for review by the Program, including but 
not limited to. costs associated with equipment used 
to dispose of any hazardous waste, such as 
evaporators or atomizers, and any service contracts 
for disposal of solvent wastes. 
Spill containment shall be constructed in areas 



^> 



around drv-cleaning machines, filters, stills, vapor 
adsorbers, solvent storage areas, and waste solvent 
storage areas by January ]_, 2002. The spill 
containment shall be constructed of or sealed with 
materials that are impervious to the applicable dry- 
cleaning solvent with a capacity of 1 10 percent of 
the largest vessel, tank, or container within the spi 



Ql 



containment area. All floor drains within the 
containment shall be removed or permanently sealed 
with materials impervious to dry-cleaning solvents. 
Emergency adsorbent spill clean-up materials shall 
be on the premises. Facilities must maintain an 
emergency response plan that is in compliance with 
federal, state and local requirements. 
All perchloroethviene drv-cleaning machines 
installed at a drv-cleaning facility after the effective 
date of this Rule shall meet air emissions that are 
equal to or less than the emissions from a drv-to-drv 
perchloroethviene drv-cleaning machine with an 
integrated refrigerated condenser. 
Perchloroethviene drv-cleaning facilities must be in 
compliance with the EPA Perchloroethviene Dry 



Cleaner NESHAP: 40 CFR. Subpart M to be 



756 



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PROPOSED RULES 



eligible for the Program. 

(4) Facilities that use perchloroethvlenc shall use a 
closed container solvent transfer system by January 
1. 2002. 

(5) Within six months of the effective date of this Rule 
no drv-cleaning facility shall use underground 
storage tanks for solvents or waste storage. Within 
one year of the effective date of the rule, all 
underground solvent and waste tanks and associated 
underground pipes shall be removed jjn accordance 
with the North Carolina Underground Storage Tank 
(UST) Regulations. 



defines what is considered a manifest discrepancy. 

15A NCAC 13A .0110 - Adds 40 CFR 265.121 "Post-closure 

requirements for facilities that obtain enforceable documents 

in lieu of post-closure permits" to (Subpart G). "Closure and 

Post Closure. " New provisions allow facilities flexibility 

during interim-status post-closure clean-ups. 

15A NCAC 13A .0112 - The proposed amendment will add 

40 CFR 268.49 to (Subpart D). "Treatment Standards", to 

provide alternative land disposal treatment standards for 

contaminated soil. 

ISA NCAC 13A .0113 - These are technical corrections. 

15A NCAC 13A .0118 - These are technical corrections. 



Authority G.S. 150B-21.2; 143-215. 104D(b). 

Notice is hereby given in accordance with G.S. 150B-21 .2 
that the DENR - Commission for Health Sendees intends 
to amend the rules cited as 15A NCAC 13A .0I0I-.0I04, 
.0106. .0108. .0110. .01I2-.0II3. .0118. Notice of Rule- 
making Proceedings was published in the Register on August 
16. 1999 and September I. 1999. 

Proposed Effective Date: August 1. 2000 



Comment Procedures: Written comments will be accepted 
through December 15. 1999 and should he mailed to Harold 
McCarty, NC Hazardous Waste Section. 401 Oberlin Road. 
Suite 150. Raleigh. NC 27605-1350. telephone (919) 733- 
2178. e xt 247. 



Fiscal Impact 
State Local Sub. 
/ 



None 

15A NCAC 13A 0101 
/ ISA NCAC 13A 0102-0104. .0106 
/ 15A NCAC 13A .0108. .0110. 
/ ISA NCAC 13A 0II2-O115. .0118 



A Public Hearing will be conducted at 9:00 a.m. on 
December 1. 1999 at the Archdale Building. Groundfloor 
Hearing Room. 512 N. Salisbury Street. Raleigh, NC. 

Reason for Proposed Action: 

15A NCAC 13A .0101 - To properly identify the Department; 

to properly identify definitions that are exempt in certain 

rules; and to eliminate the Annual Report requirements as 

required by Section 27.10 of House Bill 53 of the Second Extra 

Session of the 1996 North Carolina Legislature. 

15A NCAC 13A .0102 - All revisions are of technical nature. 

15A NCAC 13A .0103 - Has been revised to accurately reflect 

the procedure that must be followed to Petition for 

Modification or Revocation of rules. 

15A NCAC 13A .0104 - Changes to .0104(a)(1) are to 

accurately reflect those Federal Regulations that are included 

in Subpart A. .0104(a)(2) has been revised to correct the 

address of the Division of Waste Management; .0104(a)(2) 

has been deleted. The definitions that were in this 

Subparagraph are included elsewhere in this Section or are no 

longer required. .0104(b) has been revised to properly 

exclude those Federal Regulations that North Carolina is not 

adopting. 

15A NCAC 13A .0106 - This Paragraph has been expanded to 

include new EPA requirements. These requirements provide 

an exemption from hazardous waste regulations for certain 

comparable/syngas fuels. 

15A NCAC 13A .0108 - The revisions to this rule do two 

things: Sets a time frame in which a non-resolved manifest 

discrepancy must be reported to the Department; and clearly 



CHAPTER 13 - SOLD WASTE MANAGEMENT 

SUBCHAPTER 13A - HAZARDOUS WASTE 
MANAGEMENT 

SECTION .0100 - HAZARDOUS WASTE 

.0101 GENERAL 

(a) The Hazardous Waste Section of the Division of Waste 
Management shall administer the hazardous waste 
management program for the State of North Carolina. 

(b) In applying the federal requirements incorporated by 
reference throughout this Subchapter, the following 
substitutions or exceptions shall apply: 

( 1 ) "Department of E n viro n me nt Health . Environment 
and Natural Resources" shall be substituted for 
"Environmental Protection Agency" except in 40 
CFR 262.51 through 262.54. 262.56. 262.57 262.57. 
and Part 124 where references to the Environmental 
Protection Agency shall remain without substitution; 

(2) "Secretary of the Department of Environment. 
Health. Environment and Natural Resources" shall 
be substituted for "Administrator," "Regio n al 
Administrato r 1 ' "Regional Administrator." "Assistant 
Administrator" and "Director" except for 40 CFR 
262.55 through 262.57. 264.12(a). 268.5. 268.6. 
268. 42(b) 268.42(h). and 26*44 268.44. and Part 
124 where the references to the Administrator. 
Regional Administrator. "Assistant Administrator" 
and Director shall remain without subs ti tut i on: a n d 



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November 15, 1999 



757 



PROPOSED RULES 



substitution. 
f+) An — "a nn ual — r eport" — shafl — be — required — for — atr 
h azardous waste g e ne r ato r s, trealers. storers, and 
dispose r s rattier tha n a "bie nn ial rep or t". 

(c) In the event that there are inconsistencies or duplications 
in the requirements of those Federal rules incorporated by 
reference throughout this Subchapter and the State rules set 
out in this Subchapter, the provisions incorporated by 
reference shall prevail except where the State rules are more 
stringent. 

(d) 40 CFR 260.1 through 260.3 (Subpart A), "General." 
are incorporated by reference including subsequent 
amendments and editions. 

(e) 40 CFR 260.11, "References", is incorporated by 
reference including subsequent amendments and editions. 

(f) Copies of all materials in this Subchapter may be 
inspected or obtained as follows: 

( 1 ) Persons interested in receiving rule-making notices 
concerning the North Carolina Hazardous Waste 
Management Rules must submit a written request to 
the Hazardous Waste Section, PO Box 29603, 
Raleigh. N.C. 2761 1-9603. A check in the amount 
of fifteen dollars ($15.00) made payable to The 
Hazardous Waste Section must be enclosed with 
each request. Upon receipt of each request, 
individuals will be placed on a mailing list to 
receive notices for one year. 

(2) Material incorporated by reference in the Federal 
Register may be obtained from the Superintendent 
of Documents, U.S. Government Printing Office. 
Washington. DC. 20402 at a cost of five hundred 
and forty four dollars ($544.00) per year. Federal 
Register materials are codified once a year in the 
Code of Federal Regulations and may be obtained at 
the above address for a cost of: 40 CFR 1-51 forty 
dollars ($40.00). 40 CFR 260-299 forty dollars 
($40.00) and 40 CFR 87-149. forty one dollars 
($41.00), total one hundred twenty one dollars 
($121.00). 

(3) The North Carolina Hazardous Waste Management 
Rules, including the incorporated by reference 
materials, may be obtained from the Hazardous 
Waste Section at a cost of twenty five dollars 
($25.00). 

(4) All material is available for inspection at the 
Department of Environment, Health, Environment 
and Natural Resources, Hazardous Waste Section, 
401 Oberlin Road, Raleigh, NC. 

Authority G.S. 130A-294(c); 150B-21.6. 

.0102 DEFINITIONS 

(a) The definitions contained in G.S. 130A-290 apply to 
this Subchapter. 

(b) 40 CFR 260.10 (Subpart B), Definitions, is has been 
incorporated by reference, including subsequent amendments 
and editions except that the Definitions for "Disposal", 



"Landfill", "Management or hazardous waste management", 
"Person", "Sludge", "Storage", and "Treatment" are defined by 
G.S. 1 30A-290 and are not incorporated by reference 

(c) The following additional definitions shall apply 
throughout this Subchapter: 

( 1 ) "Section" means the Hazardous Waste Section, in 
the Division of Solid Waste Management, 
Department of Environment, Health. Environme nt 
and Natural Resources. 

(2) The "Department" means the NCr Department of 
Envi r onment. — H eal t h. Environment and Natural 
Resources ( DEHNR ) (DENR) 

(3) "Division" means the Division of Waste 
Management Solid Waste 
(DWM h SWMD) . 

(4) "Long Term Storage" means the containment of 
hazardous waste for an indefinite period of time in a 
facility designed to be closed with the hazardous 
waste in place. 

(5) "Off-site Recycling Facility" means any facility that 
receives shipments of hazardous waste from off-site 
to be recycled or processed for recycling through 
any process conducted at the facility, but does not 
include any facility owned or operated by 
generator of hazardous waste solely to recycle their 
own waste. 

Authority G.S. 130A-294(c); 150B-21.6. 

.0103 PETITIONS - PART 260 

(a) All rulemaking petitions for changes in this Subchapter 
shall be made in accordance with 15A NCAC 24B .0001 

(b) In applying the federal requirements incorporated by 
reference in this Rule. "15A NCAC 24B .0101" shall be 
substituted for references to 40 CFR 260.20. 

ic] tb) 40 CFR 260.21 through 260.41 (Subpart C), 
"Rulemaking Petitions." are have — been incorporated by 
reference including subsequent amendments and editions 

Authority G.S. 130A-294(c); 150B-21.6. 

.0104 PUBLIC INFORMATION - PART 2 



fa) The p r ov i sions concer ni ng requests for information in 



40 CFR 2.100 to 2 . 12 — 2.120 (Subpart A) — have been 



incorporated by reference including su b seque n t a m endments 



and editions, except that 40 CFR 2.100 (a) is not incorporated 
by reference. 

(a) The provisions concerning requests for information in 
40 CFR 2.100 to 2.121 (Subpart Aj are incorporated by 
reference including subsequent amendments and editions. 



except that 40 CFR 2.106(b), 2.112(f). and 2.120 are not 
incorporated by reference. 

(b) The following address for the Freedom of Information 
Officer is substituted for the address "A- 101, 401 M Street, 
SW, Washington. DC 20460" in 40 CFR 2. 106(a) and 
2.213(a): "Division of Waste Management, P.O. Box 29603, 
Raleigh, NC 2761 1-9603." 



758 



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14:10 



PROPOSED RULES 



(H 



m 



Th e follow i ng shall be su b stituted for the provisions 
of 40 CFR 2.100 (a) which arc not incor p o r at e d by 
reference : 



(Ar) "EPA" m e a n s the United States 

Env i ronme n tal P r ot e ctio n Agency . 

rBi "Departm ent of Environmen'i 7"H ealth. a n d 

Nat ur al Resou r ces" shall b e* substituted for 
"Envi r o n menta l — Protection — Agency" — and 
"Hazardous Waste Sectio n C hi ef i n t h e Solid 



W 



3Ste — Ma n agement — D i v i sio n — 01 — the 
Department — of Envi r o n me n t. — Health. — and 
Natural R e sou r ces" shall b e subs t ituted for 
"Ad mini st r ato r ", — "R e giona l — Administrator" 



amendments and editions. 

(b) 40 CFR 261.10 through 261.1 1 (Subpart B). "Criteria 
for Identifying the Characteristics of Hazardous Waste and for 
Listing Hazardous Waste", are incorporated by reference 
including subsequent amendments and editions. 

(c) 40 CFR 261.20 through 261.24 (Subpart C), 
"Characteristics of Hazardous Waste" are incorporated by 
reference including subsequent amendments and editions. 

(d) 40 CFR 261.30 through 2 6 1.35 261.38 (Subpart D). 
"Lists of Hazardous Wastes" are incorporated by reference 
including subsequent amendments and editions. 

(e) The Appendices to 40 CFR Part 261 are incorporated by 
reference including subsequent amendments and editions. 



and "Di r ecto r ", ex c ept in those situations Authority G.S. 130A-294(c); 150B-21.6. 



whe re autho r ity h as n ot been delegated to the 



S t at e of N.C. o r un it 
diffe r ent m e an ing 



less the context requires a 



fCi "Sectio n " m e a n s the N.C. Hazardous W r aste 

Sectio n . — m — the D i vis i on of Solid — Wtrsir 
Management. De p artment of Environ m ent. 
Health, and Natu r al Resou r ces. 



m- 



"Sect i o n 



act i v i ty. 



Off i cer" means — the — person 

the — Sec t io n — Ch i ef to — thfs 



(Li "Sectio n — Atto r ney" — metrrrs — the — person 

des i g n ated by th e Sec ti on Ch ie f t o do this 
act i v i ty. 

tFl S e ctio n Office r s h all be su b s t ituted for the 

f r eedo m of info r mat i o n off i ce r . 

r6l ^NrC^ — Haza r dou s — Waste — Sect i o n — Pu b l i c - 
Affai r s D ir ecto r " shall h e subst i tuted fo r t he 
EPA D ir ecto r of the Off i ce of Pu b lic Affai r s. 

tHi "N.C. Ha zard ous Wast e Sec t i on Offic e " shall 

be — subst i tu t ed — frrr — Regio n al — EPA — Office 



ffr "De p a r t m e n t" — m eans — NtG — Depa r t m e n t of 

E n vi r o n ment. Healt h , a n d Natural Resou r ces. 
tJl "Sec t ion Employee" shal l be subst i tu t ed fo r 



t"K~) " Sec ti on L e gal Off i ce" shall b e th e S e ct i o n 

Attorney. 
tH (_cj The provisions concerning confidentiality of 
business information in 40 CFR 2.201 to 2.311 2t3W (Subpart 
B) are hare — r>ern incorporated by reference including 
subsequent amendments and editions, except that 40 CFR 
2.209 (b) and (c), 2.301. 2.302. 2.303, 2.304. 2.306. 2.307, 
2.308. 2.308 a n d 2.3 9 2.309. 2.310 and 2.311 are not 
incorporated by reference. 



.0108 STDS APPLICABLE TO TRANSPORTERS OF 
HAZARDOUS WASTE - PART 263 

(a) 40 CFR 263.10 through 263.12 (Subpart A). "General". 
are h av e b e e n incorporated by reference including subsequent 
amendments and editions. 

(b) 40 CFR 263.20 through 263.22 (Subpart B). 
"Compliance With the Manifest System and Record keeping". 
are have been incorporated by reference including subsequent 
amendments and editions. 

(c) Upon discovering a significant manifest discrepancy, 
the transporter must attempt to reconcile the discrepancy with 
the w aste general or (e.g. with telephone conversations). If the 
discrepancy rs not resohed within 1 5 days after receiving the 
waste, the transporter must immediately submit to the 
Department a letter describing the discrepancy and attempts to 
reconcile h with a copy of the manifest or shipping paper at 
issue. 

(d) Manifest discrepancies are differences between the 
quantity or tvpc of hazardous waste designated on the manifest 
or shipping paper, and the quantity or type of hazardous waste 
a transporter actually transports. Significant discrepancies m 
quantity are; for bulk waste, variations greater than 10 percent 
in weight; and, for hatch waste, any variation i_n piece count 
(e.g. a discrepancy of one drum m a truck load). Significant 
discrepancies m type are obvious differences which can be 
discovered by inspection or waste analysis le.g. waste solvent 
substituted for waste acid, or toxic constituents not reported on 
the manifest or shipping paper). 

(e) to 40 CFR 263.30 through 263.31 (Subpart C). 
"Hazardous W 7 aste Discharges", are h ave b e e n incorporated 
by reference including subsequent amendments and editions. 

Authority G.S. 130A-294(c); 150B-21.6. 



Authority G.S. 130A-294(c); 150B-21.6. 

.0106 IDENTIFICATION AND LISTING OF 
HAZARDOUS WASTES - PART 261 

(a) 40 CFR 261.1 through 261.9 (Subpart A). "General", 
are incorporated by reference including subsequent 



.01 10 INTERIM STATUS STDS FOR OWNERS-OP 
OF HWTSD FACILITIES - PART 265 

(a) 40 CFR 265.1 through 265.4 (Subpart A). "General", 
are incorporated by reference including subsequent 
amendments and editions. 

(b) 40 CFR 265.10 through 265.19 (Subpart B), "General 



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759 



PROPOSED RULES 



Facility Standards", are incorporated by reference including 
subsequent amendments and editions. 

(c) 40 CFR 265.30 through 265.37 (Subpart C), 
"Preparedness and Prevention", are incorporated by reference 
including subsequent amendments and editions. 

(d) 40 CFR 265.50 through 265.56 (Subpart D), 
"Contingency Plan and Emergency Procedures", are 
incorporated by reference including subsequent amendments 
and editions. 

(e) 40 CFR 265.70 through 265.77 (Subpart E). "Manifest 
System. Recordkeeping, and Reporting", are incorporated by 
reference including subsequent amendments and editions. 

(f) 40 CFR 265.90 through 265.94 (Subpart F), 
"Ground-Water Monitoring", are incorporated by reference 
including subsequent amendments and editions. 

(g) 40 CFR 265.1 10 through 265.121 265. 120 (Subpart G). 
"Closure and Post-Closure", are incorporated by reference 
including subsequent amendments and editions. 

(h) 40 CFR 265.140 through 265.151 (Subpart H). 
"Financial Requirements", are incorporated by reference 
including subsequent amendments and editions, except that 40 
CFR 265.143(a)(3). (a)(4). (a)(5). (a)(6). and 40 CFR 
265.145(a)(3). (a)(4). (a)(5). are not incorporated by reference. 

( 1 ) The following shall be substituted for the provisions 
of 40 CFR 265.143(a)(3) which were not 
incorporated by reference: The owner or operator 
shall deposit the full amount of the closure cost 
estimate at the time the fund is established. Within 
one year of the effective date of these Rules, an 
owner or operator using a closure trust fund 
established prior to the effective date of these Rules 
shall deposit an amount into the fund so that its 
value after this deposit at least equals the amount of 
the current closure cost estimate, or shall obtain 
other financial assurance as specified in this Section. 

(2) The following shall be substituted for the provisions 
of 40 CFR 265.143(a)(6) which were not 
incorporated by reference: After the trust fund is 
established, whenever the current closure cost 
estimate changes, the owner or operator shall 
compare the new estimate with the trustee's most 
recent annual valuation of the trust fund. If the 
value of the fund is less than the amount of the new 
estimate, the owner or operator within 60 days after 
the change in the cost estimate, shall either deposit 
an amount into the fund so that its value after this 
deposit at least equals the amount of the current 
closure cost estimate, or obtain other financial 
assurance as specified in this Section to cover the 
difference. 

(3) The following shall be substituted for the provisions 
of 40 CFR 265.145(a)(3) which were not 
incorporated by reference: 

(A) Except as otherwise provided in Part 
(h)(3)(B) of this Rule, the owner or operator 
shall deposit the full amount of the 
post-closure cost estimate at the time the fund 



is established. 
(B) If the Department finds that the owner o: 
operator of an inactive hazardous wast( 
disposal unit cannot provide financia 
assurance for post-closure through any othe: 
option (e.g. surety bond, letter of credit, o: 
corporate guarantee), a plan for annua 
payments to the trust fund during the interirr 
status period may be established by the 
Department by use of an Administrative 
Order. 

(i) 40 CFR 265.170 through 265.178 (Subpart I). "Use anc 
Management of Containers", are incorporated by reference 
including subsequent amendments and editions. Additionally 
the owner or operator shall keep records and results o: 
required inspections for at least three years from the date o: 
the inspection. 

(j) 40 CFR 265.190 through 265.202 (Subpart J). "Tank 
Systems", are incorporated by reference including subsequen 
amendments and editions. 

(k) 40 CFR 265.220 through 265.231 (Subpart K). "Surface 
Impoundments", are incorporated by reference including 
subsequent amendments and editions. 

(1) 40 CFR 265.250 through 265.260 (Subpart L). "Wasti 
Piles", are incorporated by reference including subsequent 
amendments and editions. 

(mi 40 CFR 265.270 through 265.282 (Subpart M). "Lane 
Treatment", are incorporated by reference including 
subsequent amendments and editions. 

(n) 40 CFR 265.300 through 265.316 (Subpart N) 
"Landfills", are incorporated by reference including 
subsequent amendments and editions. 

(o) 40 CFR 265.340 through 265.352 (Subpart O), 
"Incinerators", are incorpe>rated by reference includin 
subsequent amendments and editions. 

(p) 40 CFR 265.370 through 265.383 (Subpart P). 
"Thermal Treatment", are incorporated by reference including 
subsequent amendments and editions. 

(q) 40 CFR 265.400 through 265.406 (Subpart Q) 
"Chemical. Physical, and Bioleigical Treatment", are 
incorporated by reference including subsequent amendments 
and editions. 

(r) 40 CFR 265.440 through 265.445 (Subpart W). "Drip 
Pads", are incorporated by reference including subsequent 
amendments and editions. 

(s) 40 CFR 265.1030 through 265.1049 (Subpart AA). "Air 
Emission Standards for Process Vents", are incorporated by 
reference including subsequent amendments and editions. 

(t) 40 CFR 265.1050 through 265.1079 (Subpart BB). "Air 
Emission Standards for Equipment Leaks", are incorporated 
by reference including subsequent amendments and editions 

(u) 40 CFR 265.1080 through 265.1091 (Subpart CO. "Air 
Emission Standards for Tanks. Surface Impoundments, and 
Containers", are incorporated by reference including 
subsequent amendments and editions. 

(v) 40 CFR 265.1100 through 265.1102 (Subpart DD 
"Containment Buildings", are incorporated by reference 



760 



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PROPOSED RULES 



including subsequent amendments and editions. 

(w) 40 CFR 265.1200 through 265.1202 (Subpart EE), 
"Hazardous Waste Munitions and Explosives Storage", are 
incorporated by reference including subsequent amendments 
and editions. 

(x) Appendices to 40 CFR Pail 265 are incorporated by 
reference including subsequent amendments and editions. 

Authority G.S. 130A-294(c); 150B-21.6. 

.01 12 LAND DISPOSAL RESTRICTIONS - PART 

268 

(a) 40 CFR 268.1 through 268.14 (Subpart A). "General", 
are incorporated by reference including subsequent 
amendments and editions. 

(b) 40 CFR 268.30 through 268.39 (Subpart C). 
"Prohibitions on Land Disposal", are incorporated by reference 
including subsequent amendments and editions. 

(c) 40 CFR 268.40 through 268.49 268.48 (Subpart D), 
"Treatment Standards", are incorporated by reference 
including subsequent amendments and editions. 

(d) 40 CFR 268.50 (Subpart E), "Prohibitions on Storage", 
is incorporated by reference including subsequent amendments 
and editions. 

(e) Appendices to 40 CFR Part 268 are incorporated by 
reference including subsequent amendments and editions. 

Authority G.S. 130A-294(c); I50B-21.6. 

.0113 THE HAZARDOUS WASTE PERMIT 
PROGRAM - PART 270 

(a) 40 CFR 270.1 through 270.6 (Subpart A). "General 
Information", are have — been incorporated by reference 
including subsequent amendments and editions. For the 
purpose of this incorporation by reference, "January 26. 1983" 
shall be substituted for "July 26. 1982" contained in 40 CFR 
270.1(c). 

(b) 40 CFR 270.10 through 270.29 (Subpart B). "Permit 
Application", are have — been incorporated by reference 
including subsequent amendments and editions. 

(c) The following are additional Part B information 
requirements for all hazardous waste facilities: 

( 1 ) Description and documentation of the public 
meetings as required in 15A NCAC 1 3A 
■0109(r)(7): 15ANCAC 13A .0009(r)(7): 

(2) A description of the hydrologieal and geological 
properties of the site including, at a minimum, flood 
plains, depth to water table, ground water travel 
time, seasonal and long-term groundwater level 
fluctuations, proximity to public water supply 
watersheds, consolidated rock, soil pH, soil cation 
exchange capacity, soil characteristics and 
composition and permeability, existence of 
cavernous bedrock and seismic activity, slope, 
mines, climate, location and withdrawal rates of 
surface water users within the immediate drainage 



basin and well water users within a one mile radius 
of the facility; water quality information of both 
surface and groundwater within 1000 ft. of the 
facility, and a description of the local air quality; 

(3) A description of the facility's proximity to and 
potential impact on wetlands, endangered species 
habitats, parks, forests, wilderness areas, historical 
sites, mines, and air quality; 

(4) A description of local land use including residential, 
industrial, commercial, recreational, agricultural and 
the proximity to schools and airports; 

(5) A description of the proximity of the facility to 
waste generators and population centers; a 
description of the method of waste transportation; 
the comments of the local community and state 
transportation authority on the proposed route, and 
route safety. Comments should include proposed 
alternative routes and restrictions necessary to 
protect the public health; 

(6) A description of facility aesthetic factors including 
visibility, appearance, and noise level; and 

(7) A description of any other objective factors that the 
Department determines are reasonably related and 
relevant to the proper siting and operation of the 
facility. 

(d) In addition to the specific Part B information 
requirements for hazardous waste disposal facilities, owners 
and operators of hazardous waste landfills or long term storage 
facilities shall provide the following information: 

( 1 ) Design drawings and specifications of the leachate 
collection and removal system; 

(2) Design drawings and specifications of the artificial 
impervious liner; 

(3) Design drawings and specifications of the clay or 
clay-like liner below the artificial liner, and a 
description of the permeability of the clay or 
clay-like liner; and 

(4) A description of how hazardous wastes will be 
treated prior to placement in the facility. 

(e) In addition to the specific Part B information 
requirements for surface impoundments, owners and operators 
of surface impoundments shall provide the following 
information: 

{ 1 ) Design drawings and specifications of the leachate 
collection and removal system; 

(2) Design drawings and specifications of all artificial 
impervious liners; 

(3) Design drawings and specifications of all clay or 
clay-like liners and a description of the clay or 
clay-like liner; and 

(4) Design drawings and specifications that show that 
the facility has been constructed in a manner that 
will prevent landsliding, slippage, or slumping. 

(f) 40 CFR 270.30 through 270.33 (Subpart C). "Permit 
Conditions", are h ave — been incorporated by reference 
including subsequent amendments and editions. 



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761 



PROPOSED RULES 



(g) 40 CFR 270.40 through 270.43 (Subpart D), "Changes 
to Permit", are have been incorporated by reference including 
subsequent amendments and editions. 

(h) 40 CFR 270.50 through 270.51 (Subpart E). "Expiration 
and Continuation of Permits", are have been incorporated by 
reference including subsequent amendments and editions. 

(i) 40 CFR 270.60 through 270.66 (Subpart F). "Special 
Forms of Permits", are have been incorporated by reference 
including subsequent amendments and editions. 

(j) 40 CFR 270.70 through 270.73 (Subpart G). "Interim 
Status", are have been incorporated by reference including 
subsequent amendments and editions. For the purpose of this 
incorporation by reference, "January 1, 1986" shall be 
substituted for "November 8, 1985" contained in 40 CFR 
270.73(c). 

(k) The following are additional permitting requirements 
concerning operating record of other facilities. 

( 1 ) An applicant applying for a permit for a hazardous 
waste facility shall submit a disclosure statement to 
the Department as a part of the application for a 
permit or any time thereafter specified by the 
Department. The disclosure statement shall be 
supported by an affidavit attesting to the truth and 
completeness of the facts asserted in the statement 
and shall include: 

(A) A brief description o\' the form of the 
business (e.g. partnership, sole proprietorship, 
corporation, association, or other); 

(B) The name and address of any hazardous 
waste facility constructed or operated after 
October 21, 1976 by the applicant or any 
parent or subsidiary corporation if the 
applicant is a corporation; and 

(C) A list identifying any legal action taken 
against any facility identified in Part (k)( 1 )(B) 
of this Rule involving: 

(i) any administrative ruling or order 
issued by any state, federal or local 
authority relating to revocation of any 
environmental or waste management 
permit or license, or to a violation of 
any state or federal statute or local 
ordinance relating to waste 
management or environmental 
protection: 

(ii) any judicial determination of liability 
or conviction under any state or federal 
law or local ordinance relating to waste 
management or environmental 
protection; and 

(iii) any pending administrative or judicial 
proceeding of the type described in this 
Part. 

(D) The identification of each action described in 
Part (kK 1 )(Ci of this Rule shall include the 
name and location of the facility that the 
action concerns, the acency or court that 



heard or is hearing the matter, the title, docket 
or case number, and the status of the 
proceeding. 

(2) In addition to the information set forth in 
Subparagraph (k)(l) of this Rule, the Department 
may require from any applicant such additional 
information as it deems necessary to satisfy the 
requirements of G.S. 130A-295. Such information 
may include, but shall not be limited to: 

(A) The names, addresses, and titles of all 
officers, directors, or partners of the applicant 
and of any parent or subsidiary corporation if 
the applicant is a corporation; 

(B) The name and address of any company in the 
field of hazardous waste management in 
which the applicant business or any of its 
officers, directors, or partners, hold an equity 
interest and the name of the officer, director, 
or partner holding such interest; and 

(C) A copy of any administrative ruling or order 
and of any judicial determination of liability 
or conviction described in Part (k)(l)(C) of 
this Rule, and a description of any pending 
administrative or judicial proceeding in that 
item. 

(3) If the Department finds that any part or parts of the 
disclosure statement is not necessary to satisfy the 
requirements of G.S. 130A-295, such information 
shall not be required. 

(1) An applicant for a new. or modification to an existing, 
commercial facility permit, shall provide a description and 
justification of the need for the facility. 

(m) Requirements for Off-site Recycling Facilities. 

( 1 ) The permit requirements of this Rule apply to 
owners and operators of off-site recycling facilities. 

(2) The following provisions of 40 CFR Part 264, as 
incorporated by reference, shall apply to owners and 
operators of off-site recycling facilities: 

(A) Subpart B - General Facility Standards 

(B) Subpart C - Preparedness and Prevention 

(C) Subpart D - Contingency Plan and 
Emergency Procedures 

(D) Subpart E - Manifest System. Recordkeeping 
and Reporting 

(E) Subpart G - Closure and Post-closure 

(F) Subpart H - Financial Requirements 

(G) Subpart I - Use and Management of 
Containers 

(H) Subpart J - Tank Systems 

(I) 264.101 - Corrective Action for Solid Waste 
Management Units 

(J) Subpart X - Miscellaneous Units 
(K) Subpart DD - Containment Buildings 

(3) The requirements listed in Subparagraph (m)(2) of 
this Rule apply to the entire off-site recycling 
facility, including all recycling units, staging and 
process areas, and permanent and temporary storage 



762 



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PROPOSED RULES 



areas for wastes. 

(4) The following provisions of 1 5 A NCAC 13A .0109 
+ 5 A NCAC 1 3 A .0009 shall apply to owners and 
operators of off-site recycling facilities: 

(A) The substitute financial requiremenls of Rule 
■0009(i)(l). .0109(i)(lU 2)and(4). 

(B) The additional standards of Rule 0009(r)( 1 ), 
■0109(r)(l). (2). (3), (6) and (7). 

(5) The owner or operator of an off-site recycling 
facility shall keep a written operating record at his 
facility. 

(6) The following information must be recorded, as it 
becomes available, and maintained in the operating 
record until closure of the facility: 

(A) A description and the quantity of each 
hazardous waste received, and the method(s) 
and date(s) of its treatment, storage, or 
recycling at the facility. 

(B ) The location of all hazardous waste within the 
facility and the quantity at each location. 
This information must include 
cross-references to specific manifest 
document numbers if the waste was 
accompanied by a manifest. 

(C) Documentation of the fate of all hazardous 
wastes received from off-site or generated 
on-site. This shall include records of the sale. 
reuse, off-site transfer, or disposal of all 
waste materials. 

(n) Permit Fees for Commercial Hazardous Waste 
Facilities. 

(\) An applicant for a permit modification for a 
commercial hazardous waste facility shall pay an 
application fee as follows: 

(A) Class I permit modification - S100 

(B) Class 2 permit modification - SI. 000 

(C) Class 3 permit modification - $5,000 
{Note: Class 1 permit modifications which do not require 
prior approval of the Division Director are excluded from the 
fee requirement.) 

(2) The application fee for a new permit, permit 
renewal, or permit modification must accompany 
the application, and is non-refundable. The 
application shall be considered incomplete until the 
fee is paid. Checks should be made payable to: 
Division of Solid Waste Management. 

Authority G.S. 130A-294(c); 130A-294.1 ; 
130A-295(a)(l),(2),(c); 150B-21.6. 

.0118 STANDARDS FOR THE MANAGEMENT OF 
USED OIL 

(a) 40 CFR 279.1 (Subpart A). "Definitions", is has b een 
incorporated by reference including subsequent amendments 
and editions, except that the Definition for "Used Oil" is 
defined by G.S. 130A-290(b) and is not incorporated by 



reference. 

(b) 40 CFR 279.10 through 279.12 (Subpart B). 
"Applicability", are have been incorporated by reference 
including subsequent amendments and editions. 

(c) 40 CFR 279.20 through 279.24 (Subpart C). "Standards 
for Used Oil Generators", are hav e been incorporated by 
reference including subsequent amendments and editions. 

(d) 40 CFR 279.30 through 279.32 (Subpart D). "Standards 
for Used Oil Collection Centers and Aggregation Points", are 
have b ee n incorporated by reference including subsequeni 
amendments and editions. 

(e) 40 CFR 279.40 through 279.47 (Subpart E). "Standards 
for Used Oil Transporter and Transfer Facilities", are hare 
been incorporated by reference including subsequeni 
amendments and editions. 

(f) 40 CFR 279.50 through 279.59 (Subpart F). "Standards 
for Used Oil Processors and Re-Refiners", are have hem 
incorporated by reference including subsequent amendments 
and editions. 

(g) 40 CFR 279.60 through 279.67 (Subpart G). "Standards 
for Used Oil Burners Who Burn Off-Specification Used Oil 
for Energy Recovery", are have — been incorporated by 
reference including subsequent amendments and editions. 

(h) 40 CFR 279.70 through 279.75 (Subpart H). "Standards 
for Used Oil Fuel Marketers", arc hav e b een incorporated by 
reference including subsequent amendmenis and editions. 

(i) 40 CFR 279. 80 through 279. SI (Subpart I). "Standards 
for Use as a Dusi Suppressant and Disposal of Used Oil" are 
have been incorporated by reference including subsequent 
amendments and editions. {Note: 40 CFR 279.82, which 
addresses used oil as a dust suppressant, is specifically not 
incorporated by reference. See also G.S. 130A-309.15 for 
prohibited acts regarding used oil }. 
(j) Additional State Requirements. 
( 1 ) By July 1 of each year the following persons shall 
notify the Department by submitting an annual 
report listing the type and quantity of used oil 
transported, collected, and recycled during the 
preceding calendar year, on Department forms: 

(A) Persons transporting more than 500 gallons of 
used oil per week over public highways. 

(B) Collection facilities that annually receive 
more than 6.000 gallons of used oil excluding 
the volume of used oil collected from 
individuals that change their own personal 
motor oil. 

(C) Facilities that annually recycle more than 
10.000 gallons of used oil. 

(D) Public used oil collection centers. 

(2) The following persons are not required to comply 
with JJvA NCAC 13A .0118(0(1) 1 5 A NCAC 1 3 A 
■0018(j)(l) : 

(A) An electric utility that generates used oil 
which is reclaimed, recvcled. or re-refined 



(B) 



on-site for use in its operations. 
An on-site burner thai burns 



its own 



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763 



PROPOSED RILES 



on-specification used oil provided that the 
facility is in compliance with any Air Quality 
permit requirements established by the 
Department. 
(3) An annual fee of twenty five dollars ($25.00) shall 
be paid by all persons identified in 15A NCAC 13A 

.01 18(i)( 1 )( A)-(C) -t-frft N CAC F3-A 

.0018(j)(l)(A)-(C) by July 1 of each year. 

Authority G.S. 130A-294(b),(c); 150B-21.6. 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the Commission for Health Sen-ices intends to adopt 
rules cited as I5A NCAC 18C .1538. .2007-.2008 and amend 
rule cited as 15A NCAC 18C .1513. Notice of Rule-making 
Proceedings was published in the Register on September 1. 
1999. 

Proposed Effective Date: August 1. 2000 

A Public Hearing will be conducted at 9:00 am - 12:00 pm on 
December 1. 1999 at the Archdale Building. 512 North 
Salisbury Street. Raleigh. NC. 

Reason for Proposed Action: //( order to meet the 
conditions of the primacy agreement with the US 
Environmental Protection Agency. North Carolina must adopt 
rules that are no less stringent than the Federal Regulations 
as required in Section 1413 of the Safe Drinking Water Act. 
The National Primary Drinking Water Regulations: Consumer 
Confidence Reports Rule was promulgated on August 19. 
1998: Interim Enhanced Surface Water Treatment Final Rule 
was promulgated on December 16. 1998: Disinfectants and 
Disinfection Byproducts Final Rule was promulgated on 
December 16. 1998. Cites: C.F.R. 141. Subpart O. Subpart P. 
Subpart L. Section 141.53. Section 141.54. Section 141.64. 
and Section 141.65. 

Comment Procedures: Copies of the proposed rules and 
information packages may be obtained by contacting Phylis 
Locke. Division of Environmental Health. Public Water Supply 
Section at telephone number {919) 715-3898. Written 
comments may be submitted to John C McFadyen. Head. 
Compliance Services Branch, at 1634 Mail Sen-ice Center. 
Raleigh. NC 27699-1634. Comments will be accepted through 
January 14. 2000. 



Sub. None 

/ 15ANCAC 18C.1513 

1 5 A NCAC 18C. 1538 

/ 15A NCAC 18C. 2007 

1 5A NCAC 18C .2008 



Fiscal Impact 


State 


Local 


/ 


/ 


/ 


/ 


/ 


/ 



CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18C - WATER SUPPLIES 

SECTION .1500 - WATER QUALITY STANDARDS 

.1513 TOTAL TRIHALOMETHANES SAMPLING 
AND ANALYSIS: 10,000 OR MORE 

(a) The provisions of 40 C.F.R. 141.30 are hereby 
incorporated by reference including any subsequeni 



amendments and editions. This material is available for 
inspection at the Department of \in\ ironment and Natural 



Resources, Division of Environmental Health. 2728 Capital 



Boulevard. Raleigh. North Carolina. Copies may be obtainec 
from the Environmental Protection Agency's (USEPA 
Drinking Water Hotline at 1-800-426-4791 or from EPA': 



webpage at http://www.epa.gov/ogv\dw/regs.html. 

(b) Travel trailer parks, campgrounds, and marina slips that 



are community water systems as defined by G.S. 1 30A 



3 I 3( 10). but do not serve 25 or more of the same persons more 



than six months per vear shall be exempt from the provisions 
of this Rule. 



fa) Commu n ity wate r sy st em s which serve a population of 



10.000 or more individuals and which - add a disinfectant 



(oxid an t) to the wate r i n a ny p a r t of th e d r i n k i ng wat er 



t r eat m ent p r ocess — srtarl — a n alyze — fo r to t a l — trihalomethane s 



(TTHMs) in acco r d anc e w it h th is Rule. Fo r systems serving 



75.000 or more individuals, sampling and analyses shall begin 



n o t late r tha n Novem ber 29. — 1980. — For systems se r ving 



10.000 to 74.999 individuals, sa mp ling a n d a na lyses shall 



begin not later than November 29. 1982. For the purpose o f 



this Ru le , th e minimum n um h e 



samples required to be 



take n hv the syste m shall h e b ased o n the n um b e r of treatment 



plants used by the system, except that multip l e wells d r aw i ng 



r aw water from a single aquifer may. with Department 



app r ova l , be conside r ed o n e t re atment plant for detei mining 



the m i ni m u m n u m b e r of sa mp l e s. All samples taken within an 
established frequency shall be collected withi n a 24 ho ur 
p e ri od. 



ftr) Fo r all commu n ity wate r systems utilizing surface wa t e r 



s o urc e s i n whole o r i n p a r t, and fo r all community wa t e r 



systems utilizing only ground wat er sou r ces that h ave not b een 



dete r mined by the Department to qual it y fo r the monito r ing 



r equire ment s of ic ) of this Rule, analyses for TTHMs s ha l l be 
made as follows : 



ftl Ana l yses s hall be performed at quarterly inte r vals 



on at least fou r wate r sa mp l e s t o r each treatment 



plant used by the syst em . At l e ast 25 percent of the 
samples shall be taken at loc at ions within the 



distribution — sys t em — re lice ting — the — maximum 
r es i de n c e time of the wate r in t he system. — The 



r emaini n g 75 pe r cent shall be taken at rep r esentat i ve 



l ocat i ons i n th e dist r ibution sy s tem, t aking in t o 



: d. diffe r ent sou r c e s 



accou n t num b e r of persons serv e 

of water a n d differ e nt trea t me nt m ethods employed 



T h e results of all analyses p e r quait e i sh all be 



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14:10 



PROPOSED RULES 



ar i t h m e tically — ave r ag e d — and — r e p orted — to — the 
D e par t me nt w i thin 36 days of t h e system's re c e ipt of 
such J e suits. Al l sa m ples col l ected shal l he used in 
the computat i o n of th e av er age, unless the analytical 
results — are — i nvalidated — for — technical — reasons. 
S amplin g — and — analyses — shaff — be — co nd uc te d — fn 
acco r da n ce with the methods list e d i n ( e ) of this 
Kuie. 

(2) Upon the wr it ten r equ e st of a c ommunity water 
system, the mon i tor in g f r equency required by (h)( 1 ) 
of this Rule may b e re duc e d by the Department to a 
m ini m u m of on e sample ana l yzed for TTHMs per 
qua r te r take n at a point i n t h e distri b ution system 
r eflect i ng the maximum reside n c e t im e of the wate r 
in t he system, upon a w ri t te n detei rui nation by the 
Department that the data f r om at least on e y e ar of 
monitoring in acco r dance w i th ( b)(1) o f this Rule 
and — focaf — co n d i t i o n s — de m o n st r ate — that — rotaf 
tr i halomet h a n e co n c en tratio n s will be co n sistently 
be l ow th e m aximu m co n ta min ant l evel . 

(3) If at any tim e du rin g which t he r educed m o n ito r ing 
fr eque n cy pr escr ib ed und e r t h i s- Pa r ag r aph applies. 
th e res u lt s f r om a n y analys i s exceed 0.10 mg/1 of 
TTHMs and such re su l ts ar e co n f i imed by at least 
o n e che c k sa m ple tak en promptly afte r such results 

cha n g e t o its sou r c e of wat er o r treat m ent prog r am, 
the sy stem shal l imm ed i ate l y b egi n monitoring Tn 
acco r da n ce w i t h the r equirements of (b)(1) of this 
Rule, wh i c h mo ni to r i n g shal l co n tinue l o r at least 
one year before the f r eque n cy may be r educed 

m o n ito r i n g frequ en cy may a n d s h ould b e inc r eased 
ab o v e the min i mum i n those c ases where it is 
n ecess ar y to d ete ct va ri a ti o n s of TTHM — l ev els 
wit h i n the d i st rib u ti o n syst em . 
rcl Upon w r itte n r equest to th e Depa rtm e n t, a com m unity 

d water 



t he syst em i s n ot lik e ly t o app r oach or exceed the 
m ax i mu m c onta mi n ant level to r toial TTHMs. The 
results of all analyses shal l be reported to the 
D ep a rtme nt with i n 30 days o l the system's rece i pt of 
such r esu l ts r All -s amples collected shall be used for 
d e te r min in g wh e t her the system must co m ply with 



t h e m o n ito ri m 



u ir eme n is of (b) of this Rule. 



nio rin g re qu ir eme n ts c 
u n less th e a n alytica l — re sults are i n validated fo r 
technical re aso n s. — Sa mpli ng and ana l ys e s shall be 
cond ucted i n accordance with the methods listed in 
(e) of this Rule. 
(2) If at a n y t i me du ri ng which the reduced monitoring 
fr eque ncy- - p r esc rib ed un de r (c)(1) of this Ru l e 
ap p l i es, th e re sul t s fro m a n y analysis taken by the 
sys te m for max im um TTHM pote n t i al are equal to 
o r g r eat er tha n 0.10 m g/1. a n d such results are 
confi im ed b y — at — le ast o n e ch e ck sample take n 
p r ompt l y afte r such re sults a re re ceived, the system 
shal l im m ed i ate l y begi n m o ni to rin g i n accordanc e 
wit h the r equi r e men ts of (b) of th i s Rule and such 
m o n ito ri ng shal l co n ti n ue f or at l e ast o n e v ea r 



brfr 



I n the 



l o r e the f re que n cy may be r educed agai n . I n tne 
e vent of a n y sig ni f i ca n t change to t h e system's raw 
water — oi — tr e at m e n t — pr og r am. — the — syste m — shah 
i mmediate l y — a n a l yze — an — add i tional — s ample — for 
maximum TTHM potential take n at a po in t i n the 
di stribut i on svstc m r eflecti n g m ax im u m r eside n ce 



t im e ol t h e water i n t h e syste m lo r the 



oi 



i e pu r pose 

d e te i min i n g whet h e r the system m ust comply w i th 
the mo nitorin g r equire m e n ts of (h) of t h is Ru l e. At 
the — option — of — the — Depa r t m e n t. — m o n ito ri ng 
f r equencies may a n d s h ould be inc r eased a b o v e t he 
minimum in those cases whe r e th is is necessary to 
detect — variation — of — TTHM — l evels — with in — the 
distribution syst em . 
fdl Compliance with 15A NCAC 1KC .1517(3) shall be 
determined based on a running annual average of qua r terly 



water syste m ut i l i zi n g only g r ou n d wat e r sou r ces m ay se e k t o samp l es co l lected by the sys te m as p r esc rib ed i n (hit I ) o r (2) 
have t h e mon i to r i n g frequency r equi r ed b y (b)( 1 ) of this Rule of this Ru l e. It the average of samples cove r i n g an y 1 2 m onth 

period exceeds the max i mum co n tami n a n t level, the supplie r 
of water shall - report to the Depart m e n t pursua n t to 15A 



reduced as follows: 






f+1 There shall — be a m in i m um of one sa mp le — for 
maximum — TTHM — p o t ential — pei — year — for — each 
treatment plant used b y the syst em take n at a po i nt 
m — the — distribution — syste m — refl ect i ng — max im u m 
re sidence time of th e wate r i n the syst em . — The 
system sha l l subm i t to t he Depa r t m e n t t h e r esults of 
at least o n e sample a n alyz e d for maximu m TTHM 
pote n t i al for each t r ea t ment plant used by t h e syst e m 
t ake n at a po int i n the distr i bution system r eflecting 
the maximu m r es i de n c e ti m e of t h e water in the 
system. — The syst em 's n i o iii lo iin g - frequency may 
only be re duced upon a w r i t te n dete rmin at i on b y th e 
Depa r tme nt that, b as e d upo n th e data su b m it ted b y 
th e sy ste m , t h e system has a max i mum TTHM 
potential of l e ss tha n 0. 10 mg /l -an d that, based upo n 
an assessment of t h e l ocal co n diti on s -of the system. 



NCAC ISC .1525 and notify t h e pu b l i c pu r suant to 15A 
NCAC 18C .1523. Monito rin g afte r pub li c n otif i cat i o n s h al l 
be at a frequency des i gnat e d by t h e- Depa r tme n t a n d shall 
continue unti l— a- m on i to r i n g sch e du l e as a co n di ti o n to a 
v arian ce, exemptio n o r - enfo r ce m e n t act i on shall — become 
effective. 

fcl Sa mplin g a n d analyses m ade p u r sua n t to this Section 
shall be conducted b y o n e - of the following EPA ap pr oved 
methods : 

r+1 "The — Analysis — o f Tr ihaf omet h a n es — m — D rin k in g 

Waters by the Pu r g e a n d T r a p Method." Method 

501.1. — En v ir o nm ental — Monitor in g and — S upport 

Labo r ato r y. EPA C i nc i nnat i . Q hro-. 
r2i "Th e — Ana l ys i s — of -Trihaf o me t h a ne s in — D r i n k in g 

Wat e r by L i quid/Liqu i d Ext r action." Method 501.2. 



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765 



PROPOSED RULES 



Env i ro nm e n tal Mo n ito r i n g a n d — Support La b oratory, — EPA 
Ci n c in nat iT O h io. 
f3l S a m p l es fo r TTh rM — strati — be dec h lo r i n ated — upo n 



col l ect i o n to 



scnotrto pr event farther production of t rihalometha n es. 
acco r d i ng to t he procedu r es described in the methods in (I) 
a n d (2) of this Su bi 



Authority- G.S. 130A-315; P.L. 93-523; 40 CFR 141. 

.1538 CONSUMER CONFIDENCE REPORT 

(a) The provisions of 40 CFR. 141. Subpart O : Consumer 



us Su b parag r aph. Sa m pl e s for maximum 
p ote n tia l shou l d not be dechlo ri nated. and should he held fo r 
sev e n days at 25E C o r above p rior to analysis, according to 
t he p r oc e du re s desc ribe d i n the methods in ( I ) a n d (2) of this 
Su b paragraph 

rfl Before a community water system makes any 

significant modifications to its existing treatment process fo r 
the purposes of achieving comp l ia nc e w i th I5A NCAC 18C 
.1517(3). such system must submit a n d obta i n Department 
ap pr oval — of a — detaile d — pfan — setting — forth — its — proposed 
modifica t ion and tho se s af e guards that it will implement to 
e n s ure th at the bacteriologica l quality of th e d ri nking wate r are community water systems as defined by G.S. 1 30A- 



TTHM Confidence Reports are hereb y incorporated by reference 
including any subsequent amendments and editions. This 
material is available for inspection at the Department of 
En\ ironment and Natural Resources. Division of 
Environmental Health. 272N Capital Boulevard. Raleigh, 
North Carolina. Copies may be obtain from the 
Environmental Protection Agency's (USEPA) Drinking Water 
Hotline at 1-800-426-4791 or from EPA s Consumer 
Confidence Report Rule homepage a_t 
http://www. epa.gov/safewater/ccrl .html. 

(b) Travel trailer parks, campgrounds, and marina slips that 



nologica l quality 01 the d ri nking 
served by such system will n ot be a dve r sely affe c ted by such 



313J 10), but do not serve 25 or more of the same persons more 



modi fie at i 



tica t io n . — Each syste m sha l l comply with t h e p r ovis i o n s 
set fo r th i n t h e Departme n t ap pr oved plan. At a minimum, a 
De p a r t m e n t app r oved plan shall requ ir e the system modifying 
its disinfection practice to: 

Mi Evaluate t h e wate r system f o r s a n i t a r y defects and 
e valuate the source water for biological quality; 

f2l Evaluate — its — existing — tr eat m ent — p r actices — and 
consider — i m pr ove m e n ts — thtrt — wtH — m i ni mi z e 
dis in fecta n t d em a n d and optimize f i nished wa ter 
quality throughout the distri b ution system; 

t3i Prov i de baseline w a t er quality su r v e y data of t h e 
d i stributio n system. — Such data shall i n clude the 
results from m onitoring for cohform — arrd — feca l 
coliloi i' ii bacteiia. feca l streptococci, s t andard plate 
cou nt s at 35 C a n d 20 C. p h osphate, ammonia 
n i tr ogen and t otal organic carbon. — Virus studies 
shall h e required where source wate r s are heavily 
co n ta m inat e d with sewage efflu en t; 

(4) Conduct add i t i o n al m on i to rin g to assu r e continued 
m ain t e n a n c e — of — optimal — biological — quality — m 
fi n ished water, fo r example, when chlo r amines a r e 
introduced as disi n fectants o r whe n p r e-chlon n ati on 
rs b e ing discontinued. Additional mon i toring shall 
also b e requ ire d by the Department for chlorate, 
ch l o r ite a n d chlorine dio xi de w h en chlo r i ne diox i de 
is used as a dis i nf e cta n t. — Standa r d plate cou n t 
analyses shall also h e requi r ed by th e Department as 
appropriate befo re and after any modifications ; 

r5i C o n s i de r i n clusion in the plan of provisions to 
ma i ntain an act i ve d i s i nfectant res i dua l throug h out 
the distribution system at all ti me s duri n g and afte r 

tgl The m ax i mum conta min ant le v e l s fo r t ri ha l omethanes 
set fo r th in 15A NCAC 18C .1517 shall take e ffect November 
2 9 . 1981 for commu n ity wa t e r sy ste ms serving seventy-f i ve 
th ousa n d s 75.000) o r m o r e ind i v i duals, and November 29. 
1 9 83 f o r community water systems serving ten thousand 
(10.000) to - seventy-foui thousand ni n e hund r ed ni ne ty-ni n e 
(74.999) ind i viduals. 



than six months per year sha ll be exempt from the provisions 
of this Rule. 

Authority G.S. I30A-315; PL. 93-523; 40 CFR. 141. 

SECTION .2000 - FILTRATION AND DISINFECTION 

.2007 ENHANCED FILTRATION AND 
DISINFECTION 

(a) Public water systems shall respond in writing to 
significant deficiencies outlined in sanitary survey reports no 
later than 45 days alter receipt o| the report, indicating how 
and on what schedule the system will address significant 



deficiencies noted in the survey. 

(b) Public water systems shall take necessary steps to 
address significant deficiencies identified in sanitary survey 



reports if such deficiencies are within the control of. the public 
water system and hs governing body. 

(c) Sanitary survey means an onsite review of the water 
source ( identity ing sources of contamination using results of 
source water assessments where available), facilities, 
equipment, operation, maintenance, and monitoring 
compliance of a public water system to evaluate the adequacy 
of the system, hs sources and operations and the distribution of 
safe drinking water. 

(d) A Comprehensive Performance Evaluation (CPE) is a 
thorough review and analysis of a plant's performance-based 
capabilities and associated administrative, operation, and 
maintenance practices. It is conducted to identify factors that 
may be adversely impacting a plant's capability to achieve 
compliance and emphasizes approaches that can be 
implemented without significant capital improvements. 

(e) A significant deficiency js a defect in a svstem'sdesign. 
operation, or maintenance, as well as an^ failures or 
mall unctions of hs treatment, storage, or distribution system, 
that is causing or has the potential to cause the introduction of 
contamination into water delivered to customers. 

tfj The provisions of 40 CFR 141. Subpart P : Enhanced 



766 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



PROPOSED RULES 



Filtration and Disinfection are hereby incorporated by 
reference including any subsequent amendments and editions. 
This material is available for inspection at the Department of 
Environment and Natural Resources, l)i\ ision of 
Environmental Health. 272S Capital Boulevard. Raleitih. 
North Carolina. Copies may be obtained from the 
Environmental Protection Agency's (USEPA) Drinking Water 
Hotline at 1-800-426-4791 or from EPA's webpage at 
http://www.epa.gov/ogwdw/regs.html. 

Authority G.S. 130A-315; P.L. 93-523; 40 C.F.R. 141. 



.2008 DISINFECTANTS AND DISINFECTION 
BYPRODUCTS 

(a) The provisions of 40 C.F.R. 141.53 are hereby 
incorporated by reference including any subsequent 
amendments and editions. This material is available for 
inspection at the Department of Environment and Natural 
Resources. Division of Environmental Health. 2728 Capital 
Boulevard, Raleigh. North Carolina. Copies may be obtained 
from the Environmental Protection Agency's (USEPA) 
Drinking Water Hotline at 1 -800-426-479 1 or from EPA's 
webpage at http://www.epa.gov/ogwdw/regs. html. 

(b) The provisions of 40 C.F.R. 141 .54 are hereby 
incorporated hv reference including any subsequent 
amendments and editions. This materi al is available for 
inspection at the Department of Environment and Natural 
Resources. Division of Environmental Health. 2728 Capital 
Boulevard. Raleigh. North Carolina. Copies may be obtained 
from the Environmental Protection Agency's (USEPA) 
Drinking Water Hotline at l-SOO-426-4791 or from EPA's 



webpage at http://www.epa.goy/ogwdw/regs.html. 

(c) The provisions of 40 C.F.R. 141.64 are hereby 
incorporated by reference including any subsequent 
amendments and editions. This material is available for 
inspection at the Department of Environment and Natural 



Resources. Division of Environmental Health. 2728 Capital 
Boulevard. Raleigh. North Carolina. Copies may be obtained 
from the Environmental Protection Agency's (USEPA) 
Drinking Water Hotline at 1-800-426-4791 or from EPA's 



webpage at http://ww\\ epa.gov/ogwdw/regs.hlml. 

[d] The provisions of 40 C.F.R. 141.65 are hereby 
incorporated by reference including any subsequent 
amendments and editions. This material is available for 
inspection at the Department of Environment and Natural 
Resources. Division of Environmental Health. 2728 Capital 
Boulevard. Raleigh. North Carolina. Copies may be obtained 
from the Environmental Protection Agency's (USEPA) 
Drinking Water Hotline at 1-800-426-4791 or I mm EPA's 
webpage at http://www .epa.gov/ogwdw/regs.himl. 

(e) The provisions of 40 C.F.R. 141, Subpart L; 
Disinfectant Residuals, Disinfection Byproducts, and 
Disinfection Byproduct Precursors are hereby incorporated by 
reference including any subsequent amendments and editions. 
This material is available for inspection at the Department of 
Environment and Natural Resources, Division of 



Environmental Health. 2728 Capital Boulevard. Raleigh. 
North Carolina. Copies may be obtained from the 
Environmental Protection Agency's (USEPA) Drinking Water 
Hotline at 1-800-426-4791 or from EPA's webpage at 
http://vvwvv.epa.gov/ogwdvv/regs.html. 

i_f) Travel trailer parks, campgrounds, and manna slips that 
are community water systems as defined by G.S. 130A- 



3 1 3( 10). but do not serve 25 or more of the same persons more 
than six months per year shall be exempt from the provisions 
of this Rule. 



Authority G.S. 130A-315; P.L. 93-523; 40 CFR 141. 

Notice is hereby given in accordance with G.S. 150B-21 .2 
that the Commission for Health Seniles intends to amend 
the rule cited as ISA NCAC 19A .0401. Notice of Rule-making 
Proceedings was published in the Register on September 15. 
1999. 

Proposed Effective Date: August 1. 2000 

A Public Hearing will be conducted at 9:00 a.m. on February 

2. 2000 at the Archdale Building. Groundfloor Hearing Room, 
512 N. Salisbury Street. Raleigh. NC. 

Reason for Proposed Action: Hepatitis B vaccine (and many 
other vaccines) currently contain thimerosal which is a 
preservative that kills bacteria in vaccines. Thimerosal 
contains mercury. Due to the potential risk of a cumulative 
level of mercury over the first six months of life, the US Public 
Health Service and the American Academy of Pediatrics 
(AAP) jointly recommend that the first dose of hepatitis B be 
delayed until two to six months of life. Subsequently, the AAP 
has issued a statement recommending delay dose 1 until six 
months of age until licensure of a thimerosal free hepatitis B 
vaccine . The AAP's statement is in conflict with the current 
North Carolina Rule, which states that the first dose must be 
administered by three months. In an effort to give health care 
providers the flexibility' to administer the first dose of Hepatitis 
B vaccine between two to six months of life, the rule must be 
amended. 

Comment Procedures: Comments, statements, data and 
other information may be submitted in writing through 
February 2. 2000. Copies of the proposed rules and 
information packages may be obtained by contacting the 
Immunization Branch at 919-715-6764. Written comments 
may he submitted to Barbara Laymon. Immunization Branch. 
1330 St. Mary's Street. 1916 Mail Sen-ice Center. Raleigh. NC 
27699-1916. 



Fiscal Impact 
State Local 



Sub. None 
/ 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



767 



PROPOSED RULES 



CHAPTER 19 - HEALTH: EPIDEMIOLOGY 

SUBCHAPTER 19A - COMMUNICABLE DISEASE 
CONTROL 

SECTION .0400 - IMMUNIZATION 

.0401 DOSAGE AND AGE REQUIREMENTS FOR 
IMMUNIZATION 

fal Every individual in North Carolina required to be 
immunized pursuant to G.S. 130A-152 through 130A-157 
shall be immunized against the following diseases by receiving 
the specified minimum doses of vaccines by the specified 
ages: 

( 1 1 Diphtheria, tetanus, and whooping cough vaccine — 
five doses: three doses by age seven months and two 
booster doses, one by age 19 months and the second 
on or after the fourth birthday and before enrolling 
in school (K-l) for the first time. The requirements 
for booster doses of diphtheria, tetanus, and 
whooping cough vaccine shall not apply to 
individuals who enrolled lor the first time in the first 
grade before JuK L 1987 However: 

(a) An individual who has attained his or her 
seventh birthday without ha\ing been 
immunized against whooping cough shall not 
be required to be immunized with a vaccine 
preparation containing whooping cough 
antigen: 

(b) Individuals who receive the first booster dose 
of diphtheria, tetanus, and whooping cough 
vaccine on or after the fourth birthday shall 
not be required to have a second booster 
dose: 

(c) Individuals attending school, college or 
university or w h o began their 
tetanus/diphtheria toxoid series on or after the 
age of se\en years shall be required to have 
three doses of tetanus/diphtheria toxoid of 
which one must have been within the last 10 
years: 

(2) orai Poliomyelitis vaccine— four doses: two doses of 

trivalent type by age five months: a third dose 

trivalent type by before age 19 months, and a 

booster dose of trivalent type on or after the fourth 

birthday and before enrolling in school (K-l ) for the 

first time. However: two doses of enhanced- 

pote n cv inactivated p olio m yel i t i s vaccin e m a y b e 

substituted for two doses of o r al poliomyelitis 

vaccine. 

(a) (h)(4) An individual attending school who has 

attained his or her 18th birthday shall not be 

required to receive onrl polio vaccine; 

Individuals who receive the third dose of 



lb) 



poliomyelitis vaccine on or after the fourth 
birthday shall not be required to receive a 



fourth dose; 
(c) The requirements for booster doses of poliomyelitis 



(3) 



i4i 



(5) 



(6) 



vaccine shall not apply to individuals who enrolled 
for the first time m the first grade before July _]_, 
1987; 

Measles (rubeola) vaccine--two doses of live, 
attenuated vaccine administered at least 30 days 
apart: one dose on or after age 12 months and before 
age 16 months and a second dose before enrolling in 
school (K-l ) for the first time. However: 
(a) An individual who has been documented by 
serological testing to have a protective 



1M 



antibody titer against measles shall not be 

required to receive measles vaccine; 

An individual who has been diagnosed prior 



to January 1 . 1994, by a physician licensed to 



practice medicine as having measles (rubeola) 



disease shall not be required to receive 






measles vaccine; 

An individual born prior to 1957 shall not be 

required to receive measles vaccine; 

The requirement for a sect >nd dose of measles 



vaccine shall not applv to individuals who 
enroll in school (K-l ) or in college or 



university for the 
1994; 

-one 



first time before July 



Rubella vaccine— one dose of live, attenuated 
vaccine on or after age 1 2 months and before age 16 
months. However: 

(a) An individual who has been documented by 
serologic testing to have a protective antibody 



titer against rubella shall not be required to 
receive rubella vaccine; 

(b) An individual who has attained his or her 
fiftieth birthday shall not be required to 
receive rubella vaccine; 

(c) An individual who entered a college or 
university after his or her thirtieth birthday 
and before February J_. 1989 shall not 
required to meet the requirement for rubella 
vaccine; 

Mumps vaccine-one dose of live, attenuated 

vaccine administered on or after age 12 months and 

before age 16 months. However: 

(a) An individual born prior to 1957 shall not be 
required to receive mumps vaccine; 
The requirements for mumps vaccine shall 
not apply to individuals who enrolled for the 
first time in the first grade before JuK 1 . 1987 
or m college or university before 
1994. 



£bj 



An indiv idual who 



lulv 1 

has been 



documented by serological testin g to have a 

protective antibody titer against mumps shall 

not be required to receive mumps vaccine; 

Haemophilus influenzae, b, conjugate vaccine— three 

doses of HbOC or two doses of PRP-OMP by 

before age seven months and a booster dose of any 



768 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



PROPOSED RULES 



type on or after age 12 months and by age 16 months. 
Individuals born he lore October _L 1988 shall not be required 
to be vaccinated against Haemophilus influenzae, fc. 
Individuals who receive the first dose of Haemophilus 
influenzae, b. vaccine on or alter 12 months of age and before 
15 months of' age shall be required to have only two doses of 
HhOC or PRP-OMP. Individuals who receive the first dose of 
Haemophilus influenzae, l\ vaccine on or after 15 months of 
age shall be required to have only one dose of any of the 
Haemophilus influenzae conjugate vaccines, including PRP-D. 
However, no individual who has passed their fifth birthday 
shall be required to be vaccinated against Haemophilus 



influenzae. b; 

(7) Hepatitis B vaccine-three doses: one dose by age 
three months, a second dose b y befo r e age five 
months a n d a t hir d dose by age 19 months, by age 
19 months. Individuals horn before July _L 1^94 
shall not be required to be vaccinated against 
hepatitis B. 
fbl — Notwi t hstanding the requirements of Pa r ag r aph (a) of 
th is R ul e: 

r+i An individual who has attained h i s o r he r s e ve n th 

birthday without hav i ng bee n immu n ized agai n st 
whooping — cou gh — shah 1 — not — be — r equired — to — be 

whooping cough antigen. 



ttr 



-An — i n dividual — who — has — been — docu men ted — by 
sero l ogic testing to ha v e a p r otect i v e a n t ib o dy ti te r 
agai n st r ubella shall — not b e r equ ire d to re ceive 
rubella vaccine. 

f3l An — i ndividual — who — has — been — documented — by 

se r ological test in g to h ave a protect i ve ant i body liter 
against measl e s s h all not b e requir e d t o receive 
measles vaccine . A n individual who has been 



diagn os e d p r ior to Ja n ua r y 1. 1994. b y a phys i cian 
lice n sed t o prac t ic e m ed i ci n e as hav in g measles 
hall not be requ ir ed to receive 



( r u b eo l a) disease 
measles vaccine 



f+) An ind iv idual attending school who has attained his 

o r he r 18t h bir thda y s h all n ot he requ ire d to receive 
oral polio vaccine. 

(5) A n individu al- born prior to — 1957 s h all not be 

required to receive measles o r m u m ps vaccine. An 
individual who has atta i ned h is o r her fiftieth 
birthday shall not b e l e quned to r e c e ive rubella 



vaccine. — A n in d i vidual win 



.'cine. — A n in d i vidual who e n te r ed a co l lege or 
u n ive r s i ty afte r his or her thirt i eth b i r thday and 
b efore febr i 



tore lehruary 1. 1989 shall not be r equ ir 
me e t the requirem e nt for rubella vaccine. 



ed to 



f6l The 



> ' — i n e requi r eme n ts to r m u mp s vaccine shall not ~appry 
to indiv i duals who enrolled l'oi the first time in the 



fi r st g r ade beft 



-rttct 



l or e Ju l y — 1. 1987 or in college or 
univ e rsity before July 1. 1^94. An individual who 
h as b een docum e nted by serological t e sti n g to have 
a- p r otect i v e antibody t i te r against mumps shall n ot 
be required to rec e ive m umps vaccine. 



rTl In d i v i duals who receive the fi r st boost er dos e of 

dip h the ri a, tetanus, and w h ooping cough vaccine on 
or after the fourth bi r thday s h all not be r equi r ed t o 



m- 



:r the lourth r u r tnciay s r 
have a second booste r dose : 



I n dividuals — who 



re c e ive the third dose of oral po l io m yelitis vaccine 
on o r afte r the fourth birthday s h all no t be requ i red 
to receive a fourth dose. 

t8l The requ i r e ments for b ooste r dos e s o f d i phth eri a. 

teta nus, and whooping cough vaccine and oral 
polio m yelit i s vacc in e shall n ot apply to individuals 
who en rolled for th e first time in the fi r st grade 
b efor e Jul y 1. 1987. However; i n dividuals atte n ding 
a — college — or — unive r sity — ot — who — began — their 
t e ta n us/diphtheria toxo i d se ri es o n o r alter the age of 
s e v en y e a r s shall b e r equ ire d to have th r ee doses of 
t e ta n us/d i phtheria toxoid of w h ic h one must have 
b een w i t h i n the last 10 years. 

Ind i viduals bo r n before Octobe r 1. 1988 shall not he 
required to — be vaccinated - aga in st — Haemo phil u s 

o f Hae m oph i lus influ e nzae, b. vacci n e o n o r afte r 1 2 
m o n ths of age and b efo r e 1 5 months of age shall be 



required — to — have o n ly — t wo doses — of HhOC o r 
P RP-OMP — Individuals w h o rece i ve t h e first dos e 



h5 



o l Ha em o ph ilus influenzae, b. vacci ne o n or a l te r 
m o n t h s o l age shall be requ ire d to have only 1 one 



dose — of- — any — of — the — Hae m ophilus — in flue nz a e 
co nj ugate vaccines, i ncluding PRP-D. Howeve r , no 
in d i v i dual who has passed t h e ir fi l t h birthday shall 
b e r equ ir ed to be vaccinated against Hae m o p h ilu s 
in fluenzae, h. 

trW) Ind i viduals born befo r e July 1. 1994 shall not be 

r equired to be vaccinated against h epatitis B. 

fTh T h e r equirement for a seco n d dose of measles 

vac cin e shall not ap p ly to ind i v i duals who e n roll i n 
sc h ool (K-l ) or in college 



or in college o r u n iversity for the first 
time before July 1. 1994. 

Authority G.S. 1 MIA- 152(c); I30A-155.1. 

Notice is herein given in accordance with G.S. 150B-21 .2 
that the Commission for Health Services intends to adopt 
the rules cited as 15A NCAC 21 F . 1201-. 1204 and amend the 
rule cited as 15A NCAC 21H .0314. Notice of Rule-making 
Proceedings was published in the Register on September 15, 
1999, 1999. 

Proposed Effective Date: August 1 , 2000 

A Public Hearing will be conducted at 9:00 a.m. on 
December 1. 1999 at the Archdale Building, Groundfloor 
Hearing Room. 512 N. Salisbury Street, Raleigh, NC 

Reason for Proposed Action: Approximately 80% of this 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



769 



PROPOSED RULES 



State's birthing hospitals now have one of three types of 
equipment for performing newborn physiologic hearing 
screenings. Varied testing protocols are being employed 
across this State which result in varied outcomes regarding 
pass/fail interpretations. This agency has oversight 
responsibility for the screening of newborns. The North 
Carolina General Assembly (S.L. 1998. c. 131, s. 13) directed 
the Commission for Health Serxices to adopt temporary and 
permanent rules to include newborn hearing screening in the 
Newborn Screening Program established under G.S. 130A- 
125. 

Comment Procedures: Written comments may be submitted 
to Mary Ann Stone. Children 's Special Health Services, PO 
Box 29597. Raleigh, NC 27626-0597. within 30 days after the 
date of publication of this issue in the NC Register. Copies of 
the proposed rules may be obtained by contacting Maty Ann 
Stone at 9 19-7 15-3904. 



Fiscal Impact 
State Local 



Sub. None 
/ 



CHAPTER 21 - HEALTH: PERSONAL HEALTH 

SUBCHAPTER 21F - CHILDREN'S SPECIAL HEALTH 
SERVICES: CHILDREN AND YOUTH SECTION 

SECTION .1200 ■ GENERAL 

.1201 GENERAL 

The hearing screening component of the Department of 
Health and Human Services' Newborn Screening Program is 
administered by the central office staff for Children's Special 
Health Services. The genetic screening component of the 
Department's Newborn Screening Program is found in 15A 
NCAC21H .0314. 

Authority G.S. 130A-125. 

.1202 DEFINITIONS 

As used in this Section: 

( 1 ) "CSHS" means the Children's Special Health 
Services Program central office staff. 

(2) "Neonate" means any term infant less than one 
month of age or any preterm infant less than one 
month corrected age. 

(3) "Person" means any natural person, partnership, 
corporation, unit of government of this State, and 
any unincorporated organizations. 

Authority G.S. 130A-125. 

.1203 SCREENING REQUIREMENTS 

(a) The attending physician shall order and medical 
facilities, that provide birthing or inpatient neonatal services. 



shall make reasonable efforts to cause each neonate, born in 
North Carolina, to be physiologically screened in each ear for 
the presence of permanent hearing loss. 

(b) Parents or guardians may object to the hearing screening 



in accordance with G.S. 130A- 125(b). 



Authority G.S. 130A-125; S.L. 1998. c. 131. s. 13. 



REPORTING REQUIREMENTS 

The attending physician shall order and medical 



.1204 

(a} 

facilities, that provide birthing or inpatient neonatal services. 



shall make reasonable efforts to identify and report to the local 



health department of residence all neonates who, prior to 
discharge home, were not successfully screened or who failed 



to pass the physiologic hearing screening. These reports shall 
be submitted w ithin 30 days after discharge. 

(b) All persons performing neonatal physiologic hearing 
screenings shall report quarterly to CSHS. within 30 days after 



the end of each quarter in the calendar year, the following: 

( 1 ) Total number of neonates who were screened by 

each tester and the number who passed that 

screening, with the results of multiple screenings for 



the same neonate being clarified. 



Ol 



Total number of neonates whose parents or 
guardians objected to the hearing screening, 
(c) All persons performing physiologic hearing screenings 



for infants less than six months of age shall adopt testing and 



monitoring procedures and follow-up protocols to assure 



referral for diagnosis and treatment, in accordance with a 
statewide plan developed by CSHS in consultation with the 
Early Diagnosis and Intervention Section in the Division of 
Education Services in the Department. 

Authority G.S. 130 A- 125. 

SUBCHAPTER 21H - SICKLE CELL SYNDROME: 

GENETIC COUNSELING: 

CHILDREN AND YOUTH SECTION 

SECTION .0300 - GENETIC HEALTH CARE 

.0314 SUBMISSION OF BLOOD SPECIMENS FOR 
SCREENING OF NEWBORNS 

(a) The attending physician shall draw a blood specimen for 
each infant born in North Carolina and shall submit such 
specimens to the North Carolina State Laboratory for Public 
Health for testing for the following metabolic and other 
hereditary and congenital disorders: 



(1) 
(2) 
(3) 
(4) 



phenylketonuria (PKU). 
galactosemia, 

congenital primary hypothyroidism, 
congenital adrenal hyperplasia (21 -hydroxylase 
deficiency), 
(5) sickle cell disease, 
(b) Notwithstanding Paragraph (a) of this Rule, parents or 
guardians may object to screening in accordance with G.S. 



770 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



PROPOSED RULES 



I30A-125(b). 

(c) The hearing screening component of die Department's 
Newborn Screening Program is found in 15A NCAC 2IF 
.1200. 



Authority G.S. 130A-125. 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the Commission for Health Services intends to amend 
the rules cited as 15A NCAC 24 A .0402-.0403. Notice of 
Rule -making Proceedings was published in the Register on 
September 15. 1999. 

Proposed Effective Date: August 1. 2000 



cost to charges that is derived from audited cost reports and is 
obtained from the Division of Medical Assistance. The 
Department shall use the cost rate in effect on the date a claim 
is received, and retroactive adjustments to claims paid shall 
not be made. If a cost rate cannot be obtained for an out-of- 
state hospital, the Department shall reimburse the hospital at 
75 percent of the billed amount for authorized services. The 
cost rates and any subsequent amendments and editions are 
incorporated herein by reference in accordance with G.S. 
1 50B-2 1 .6. The cost rates can be obtained from the Office of 
the Controller, Purchase of Medical Care Services. P.O. Box 
29602, Raleigh. N.C. 27626-0602. 

(b) In addition to the requirements of Paragraph (a) of this 
Rule, in the Cancer Program there shall be a limit on the 



payment for an inpatient admission of 
current annual budget. 



% of the program's 



A Public Hearing will be conducted at 9:00 a.m. on 
December 1, 1999 at the Archdale Building. Groundfloor 
Hearing Room. 512 N. Salisbury Street. Raleigh. NC. 

Reason for Proposed Action: These amendments would 
place limits on the amount that could be paid on any single 
claim for authorized services under the Cancer Program. 
These limits are defined as percentages of the program s 
budget. This will protect the program's budget from new. 
unusual, and high cost services, which could force the 
program to close suddenly, denying basic services to many 
citizens. Recent budget shortfalls, and discussions with an 
Appropriations subcommittee (to obtain approval for the 
transfer of funds into the program) have heightened the need 
for this fiscal limitation. 

Comment Procedures: Comments max be submitted in 
writing within 30 days after the date of publication of this 
issue of the North Carolina Register to Richard F. Moore. 
DHHS Controller's Office. Purchase of Medical Care Services 
Unit, PO Box 29602. Raleigh. NC. 



Fiscal Impact 
State Local 



Sub. None 
/ 



CHAPTER 24 - GENERAL PROCEDURES FOR 
PUBLIC HEALTH PROGRAMS 



Authority G.S. 130A-5(3); 130A-124; 130A-127; 130A-129; 

130A-205; 130A-223. 

.0403 REIMBURSEMENT FOR PROFESSIONAL, 
OUTPATIENT. OTHER SERVICES 

(a) The Department shall reimburse providers of authorized 
outpatient services, professional services, and all other 
services not otherwise covered in the rules of this Section at 
the Medicaid rate in effect at the time the claim is received by 
the Department, except in the Migrant Health Program. 

(b) The Migrant Health Program shall reimburse providers 
of program covered outpatient, professional, and other services 
at the Medicaid rate in effect at the time the claim is received 
minus the allowable patient copayment to a maximum 
program payment of one hundred fifty dollars ($150.00) per 
claim, per date of service. The allowable patient copayment is 
three dollars ($3.00) for each prescribed drug and five dollars 
($5.00) per claim, per date of service for all other services. 
The one hundred fifty dollar ($150.00) limit shall not apply to 
drugs, medical supplies, and durable medical equipment. 

( c ) In addition to the requirements of Paragraph (a) of this 
Rule, for professional and outpatient services under the Cancer 
Program, there shall be a per claim payment limit of J_2l of the 
program' scurrent annual budget. 

Authority G.S. I30A-5(3); I30A-124; 130A-127; I30A-129; 
130A-205; 130A-223. 



SUBCHAPTER 24A - PAYMENT PROGRAMS 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 



SECTION .0400 - REIMBURSEMENT 

.0402 REIMBURSEMENT FOR INPATIENT 
HOSPITALIZATION 

(a) The Department shall reimburse providers of authorized 
inpatient hospitalization services at 80 percent of the hospital's 
inpatient cost rate, which is then applied to the amount billed 
for authorized services. The inpatient cost rate is a ratio of 



CHAPTER 48 BOARD OF PHYSICAL 
THERAPY EXAMINERS 

Notice is hereby given in accordance with G.S. 150B-21 .2 
that the North Carolina Board of Physical Therapy 
Examiners intends to amend rule cited as 21 NCAC 48F 0102. 
Notice of Rule-making Proceedings was published in the 
Register on September 15. 1999. 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



771 



PROPOSED RULES 



Proposed Effective Date: August 1, 2000 

A Public Hearing will be conducted at 11:00 am on 
December 9, 1 999 at the Ramada Inn, Dorton Room, 1520 Blue 
Ridge Rd., Raleigh, NC 27607. 

Reason for Proposed Action: //; the 1999 Session of the 
North Carolina General Assembly, the Legislature granted the 
Board statutory authority to increase the fees, effective 
immediately. The majority of fees that will be collected in 
1999-2000 will be collected in November '99, December '99, 
and January, 2000. The Board had a deficit of $54,000 in 
1998-1999 fiscal year and without the fee increase, the Board 
will experience a larger deficit in 1999-2000. 

Comment Procedures: Comments, both written and oral, 
may be submitted at the public hearing. Oral presentation 
lengths may be limited, depending on the number of people 
that wish to speak at the public hearing. Written comments 
are encouraged and may be submitted to Mr. Ben Massey, Jr., 
PT, Executive Director, NC Board of Physical Therapy 
Examiners, 18 West Colony Place, Suite 120, Durham, NC 
27705, (919) 490-6393 and must be received no later than 
December 15, 1999. 



Fiscal Impact 
State Local 



Sub. None 
/ 



SUBCHAPTER 48F - CERTIFICATES: FEES: 
INVESTIGATIONS: RECORD OF LICENSEES 

SECTION .0100 - CERTIFICATES: FEES: 
INVESTIGATIONS: RECORD OF LICENSEES 

.0102 FEES 

(a) The following fees are charged by the Board: 

( 1 ) application for physical therapist licensure: 

(A) by endorsement or examination taken in 
another state, one hundred dollars ($100.00): 
one hundred twenty dollars ($120.00): 

(B) by examination, o n e hu n d r ed dolla r s 
($100.00) one hundred twenty dollars 
($120.00) plus cost of examination; 

(2) application for physical therapist assistant licensure: 

(A) by endorsement or examination taken in 
another state, one hu n dred dolla r s ($1 0.00); 
one hundred twenty dollars ($120.00); 

(B) by examination, o n e hund re d dolla r s 
($100.00) one hundred twenty dollars 
($120.00) plus cost of examination: 

( 3 ) renewal for all persons, forty dollars ($40.00); sixty 
dollars ($60.00); 

(4) penalty for late renewal, twenty dollars ($20.00) 
plus renewal fee; 

(5) revival of license lapsed less than five years. 



(6) 

(7) 

(8) 

(9) 

(10) 

(11) 



twenty-five dolla r s ($25.00) thirty dollars ($30.00) 

plus renewal fee; 

transfer of licensure information fee. including 

either the examination scores or licensure 

verification or both, fift e e n dollars ($15.00); 

twenty-five dollars ( $25.00); 

retake examination, thirty dollars ($30.00) fifty 

dollars ($50.00) plus actual cost of examination; 

certificate replacement or duplicate, fifteen dollars 

($+5^60): twenty dollars ($20.00); 

directory of licensees, five dollars ($5.00): ten 

dollars ($10.00); 

computer print-out or labels of any portion of list of 

ph ysical the r apists, licensee list or labels or any 

portion there-of for physical therapists, sixty dollars 

($60.00); 

computer print-out or labels of a n y po r t i on of list of 

physical therapist ass i sta n ts, licensee list or labels or 



any portion there-of for physical therapist assistants. 



sixty dollars ($60.00); 
(12) processing fee for returned checks, maximum 
allowed by law. 

(b) The application fee is not refundable. The Board shall 
consider written requests for a refund of other fees based on 
personal or economic hardship. 

(c) A certified check, money order or cash is required for 
payment of application fees listed in Paragraphs (a)( 1 )(A), 
(B). (C). (D), and (2)(A). (B), (C). and (D) of this Rule. 

Authority G.S. 25-3-512; 90-270.33. 



% % % % % 



^i^^******^:*^** 



CHAPTER 58 REAL ESTATE COMMISSION 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina Real Estate Commission intends 
to adopt rules cited as 21 NCAC 58A .0615; 58C .0108, .0220, 
.0601-.0608; and amend rules cited as 21 NCAC 58A .0107; 
.0109 - .0110; .0113 - .0114; .0301 - .0304; .0401 - .0404; 
.0406; .0503; .0505; .0601; .1402: .1703: .1708; 21 NCAC 
58B .0101 - .0102; 21 NCAC 58C .0105 - .0107; .0207; .0213 

- .0214; .0217 - .0218; .0302; .0304 - .0307; .0310; .0312; 21 
NCAC58E .0102; .0202; .0204 - .0205; .0304; .0310; .0412; 
.0515 . Notice of Rule-making Proceedings was published in 
the Register on September 15, 1999. 

Proposed Effective Date: July 1, 2000 - 21 NCAC 58A 
.0107; .0109; .0113 - .0114; .0301; .0303; .0402; .0404; 
.0503; .0505; .0601; .0615; .1402; .1703; .1708; 21 NCAC 
58B .0101 - .0102; 21 NCAC 58C .0105 - .0108; .0207; .0213 

- .0214: .0217 - .0218; .0220; .0304; .0312; 21 NCAC 58E 
.0102; .0202; .0204 - .0205; .0304: .0310: .0412: .0515 
October 1, 2000 - 21 NCAC 58A .0110; .0302; .0304; .0401; 
.0403; .0406; 21 NCAC 58C .0302; .0305 - .0307; .0310; 
.0601-- .0608 



772 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



PROPOSED RULES 



A Public Hearing will be conducted at 3:00 pm on December 
7. 7999 a/ 1313 Navaho Drive, Raleigh, NC 27609. 

Reason for Proposed Action: 21 NCAC 58A-E -to delete (1 ) 

all uses of the words "salesman" or "salesmen" and insert in 

lieu thereof the words "salesperson" or "salespersons", 

respectively; and (2) all uses of masculine pronouns and 

replace with both masculine and feminine pronouns. 

21 NCAC 58A .0107 -to (1) change the term "broker" to 

"licensee;" (2) define and require the use and proper 

referencing of supplemental disbursement worksheets for trust 

account checks applicable to multiple properties; (3) require 

referencing of all canceled checks or supplemental 

disbursement worksheets to corresponding ledger sheets; (4) 

clarify the definition of "transaction"; (5) permit the use of 

property ledger sheets; (6) require journal or check stubs to 

identify in chronological sequence each bank deposit and 

disbursement transaction and identify the corresponding 

ledger sheet either on the journal or on the supplemental 

deposit/disbursement worksheet; and (7) require the 

appropriate use of a subsidiary owner or property ledger 

sheet. 

21 NCAC 58A .0109 -to clarify that licensees providing 

cenain ancillary goods and services for compensation need 

not make special disclosures to the customers who rent or 

purchase those same goods and serxices. 

21 NCAC 58A .0110 -to require that brokers-m-charge 

complete a special course of instruction. 

21 NCAC 58A .01 13 -to require licensees to disclose to the 

Commission disciplinary actions against them in connection 

with any other professional license. 

21 NCAC 58A .0114 -to provide on the Residential Property 

Disclosure Statement for the disclosure of newly subdivided 

parcels of land, straight pipe sewer systems, past or current 

use of temporary sandbag erosion control structures, and to 

clarify the definition of "property". 

21 NCAC 58A .0301 -to provide a cross-reference to 21 

NCAC 58A .0502. and to provide that the application form for 

an individual license applicant will require the applicant to 

provide proof of identity rather than photo identification. 

21 NCAC 58A ,0302-to provide new procedures for filing 

license applications and to describe the separate fee to be paid 

by applicants choosing to take the license examination by 

computer and how such fee will be determined. 

21 NCAC 58A .0303 -to provide procedures for payment of 

the fee to rake the license examination by computer. 

21 NCAC 58A .0304 -to delete paragraph (a), and to clarify 

the application of the provision now appearing as paragraph 

(b). 

21 NCAC 58A .0401 -to establish new procedures and 

requirements for scheduling applicants for license 

examinations. 

21 NCAC 58A .0402 -to amend the period of time during 

which the one-year examination recognition is tolled, to 

eliminate references to separate license examinations for 



brokers and salespersons, and to provide a more flexible 
definition of the examination passing score. 
21 NCAC 58A .0403 -to establish new procedures for the re- 
examination of applicants who fail to pass the license 
examination or who fail to appear for a scheduled 
examination. 

21 NCAC 58A .0404 -to provide that applicants must strictly 
comply with all instructions provided by examination 
supervisors regarding examination procedures and applicant 
conduct during examinations, and failure to do so may result 
in appropriate action by the Commission. 
21 NCAC 58A .0406 -to establish new procedures for 
examination review by applicants failing the examination. 
21 NCAC 58A .0503 -to state that salespersons who renew 
late will initially be placed on inactive license status, and to 
increase the renewal fee from thirty ($30.00) dollars to thirty- 
five ($35.00) dollars. 

21 NCAC 58A .0505 -to increase the renewal fee from thirty 
I $30.00) dollars to thirty-five ($35.00) dollars. 
21 NCAC 58A .0601 -to conform with the requirements of 
changes in GS 93A-3(d) and 93A-6(a). 

21 NCAC 58A .0615 -to adopt a new rule to require that 
settlement negotiations in contested cases be completed within 
a certain period of time prior to the hearing date. 
21 NCAC 58A .1402 -to delete the reference to claims for 
which the Commission has received no notice under G.S. 93A- 
17(a)(2). 

21 NCAC 58A .1703 -to clarify that any course taken by an 
inactive licensee within the current license period or the 
preceding license periods will count toward the maximum 
hours required to activate a license that has not been active 
since the preceding July I. 

21 NCAC 58A .1708 -to delete paragraph (e) and clarify (a). 
21 NCAC 58B .0101 -to clarify the type of financial 
information applicants for time share project registration must 
furnish the Commission. 

21 NCAC 58B .0102 -to establish a graduated fee schedule 
for time share applicants and to allow the Commission to 
retain the application fee if a developer withdraws its 
application. 

21 NCAC 58C .0105 -to raise the standard expected of 
approved schools, other than private real estate schools, with 
regard to the performance of their students on the real estate 
license examination. 

21 NCAC 58C .0106 -to eliminate the requirement that 
approved schools other than private real estate schools obtain 
advance approval from the Commission for changes in 
program structuring, course content and course completion 
standards. 

21 NCAC 58C .0107 -to delete the requirement that schools 
other than private real estate schools include in any 
advertisement citing examination performance data the type of 
examination and a statement that the data was provided by the 
Commission. 

21 NCAC 58C .0108 -to require schools other than private 
real estate schools to submit, at the request of the 



14:10 



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November 15, 1999 



773 



PROPOSED RULES 



Commission, student evaluations of a course and instructor on 

a form prescribed by the Commission. 

21 NCAC 58C .0207 -to make it clear that the applicant for a 

private real estate school license is responsible for assuring 

that school facilities comply with applicable laws and 

regulations regarding safety, health and sanitation, and to 

require that school facilities have an overhead projector and a 

chalkboard, dry erase board, or similar writing surface. 

21 NCAC 58C .0213 -to comply with a recent amendment to 

G.S. 93A-36 eliminating the requirement to have a separate 

performance bond for branch locations of a private real estate 

school. 

21 NCAC 58C .0214 -to delete the requirement that private 

real estate schools include in any advertisement citing 

examination performance data the type of examination and a 

statement that the data was provided by the Commission. 

21 NCAC 58C .0217 -to delete the reference to "appraisal 

pre-licensing and pre-certification course" in paragraph (b). 

21 NCAC 58C .0218 -to raise the standard expected of 

approved schools, other than private real estate schools, with 

regard to the performance of their students on the real estate 

license examination. 

21 NCAC 58C .0220 -to adopt a new rule to require private 

real estate schools to submit, at the request of the 

Commission, student evaluations of a course and instruction 

on a form prescribed by the Commission. 

21 NCAC 58C .0302 -to establish the required program 

structure for real estate salesperson and broker pre-licensing 

education programs and to modify the prerequisite for 

enrollment in the broker education program. 

21 NCAC 58C .0304 -to clarify that approved schools may 

require a higher course passing grade for the purpose of 

certifying course completion to the Commission than for the 

purpose of granting college credit or continuing education 

units and to require that when students are allowed to make 

up a missed course examination or to retake a failed course 

examination, the examination used must be substantially 

different from the initial examination administered to the 

class. 

21 NCAC 58C .0305 -to increase the maximum classroom 

hours schools are permitted to conduct in any day and any 

seven-day period. 

21 NCAC 58C .0306 -to prescribe specific standards and 

procedures for approving textbooks and other instructional 

materials. 

21 NCAC 58C .0307 -to provide for the approval of 

prelicensing instructors separate from the licensing and 

approval of schools and to prescribe new criteria for the 

approval of such instructors. 

21 NCAC 58C .0310 -to provide that schools must retain on 

file copies of grade and attendance records for three (3) years 

rather than five (5) years. 

21 NCAC 58C .0312 -to require that when schools make 

exceptions to Commission rules to accommodate persons with 

disabilities that the accommodation made must be reasonably 

appropriate for the particular disability, that deviation from 



the rules should be no greater than necessary to provide a 
reasonable accommodation, and that schools must notify the 
Commission in writing of the proposed accommodation prior 
to the start of the course in question. 

21 NCAC 58C .0601 -.0608 -to adopt new rules to provide for 
the approval of pre-licensing instructors separate from the 
licensing and approval of schools and to prescribe new 
criteria for the approval of such instructors. 
21 NCAC 58E .0102 -to permit course sponsors and 
instructors to make modifications to the update course in 
certain situations. 

21 NCAC 58E .0202 -to provide for a longer approval period 
for update course instructors. 

21 NCAC 58E .0204 -to provide for a longer approval period 
for update course instructors. 

21 NCAC 58E .0205 -to clarify that the Commission can deny 
or withdraw the approval of an update course instructor based 
on the fact that an instructor has been disciplined by the 
Commission or any other occupational licensing agency in 
North Carolina or another jurisdiction. 

21 NCAC 58E .0304 -to change the minimum required 
number of classroom hours for approval of an elective course 
from two (2) to four (4) and to provide more current and 
comprehensive criteria regarding applications for approval of 
"distance education " courses. 

21 NCAC 58E .0310 -to provide more current and 
comprehensive guidelines regarding the acceptability of 
delivery methods for "distance education" courses. 
21 NCAC 58E .0412 -to clarify- that the Commission can deny 
or withdraw the approval of an elective course or sponsor 
based on the fact that an elective course instructor in the 
employ of a sponsor has been disciplined by the Commission 
or any other occupational licensing agency in North Carolina 
or another jurisdiction, and to clarify that the Commission can 
discipline a CE sponsor who collects money from licensees for 
a course but fails to provide the promised instruction. 
21 NCAC 58E .0515 -to require that when schools make 
exceptions to Commission rules to accommodate persons with 
disabilities, that the accommodation made must be reasonably- 
appropriate for the particular disability, that deviation from 
the rules should be no greater than necessary to provide a 
reasonable accommodation, and that schools must notify the 
Commission in writing of the proposed accommodation prior 
to the start of the course in question. 

Comment Procedures: Comments regarding the rules may be 
made orally or submitted in writing at the public hearing. 
Written comments not submitted at the hearing may be sent to 
or delivered to Janet B. Thoren, c/o North Carolina Real 
Estate Commission, PO Box 1711)0, Raleigh NC 27619-7100, 
so as to be received b\ January 14, 2000. 



Fiscal Impact 



774 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



PROPOSED RILES 



State Local 



Sub. None 



/ 



21 NCAC 58 A. 03 03 
ALL OTHER RULES 



SUBCHAPTER 58A - REAL ESTATE BROKERS 
AND SALESMEN 

SECTION .0100 - GENERAL BROKERAGE 

.0107 HANDLING AND ACCOUNTING OF FUNDS 

(a) All monies received by a broker licensee acting in his or 
her fiduciary capacity shall be deposited in a trust or escrow 
account not later than three banking days following receipt of 
such monies except that earnest money deposits paid by means 
other than currency which are received on offers to purchase 
real estate and tenant security deposits paid by means other 
than currency which are received in connection with real estate 
leases shall be deposited in a trust or escrow account not later 
than three banking days following acceptance of such offer to 
purchase or lease; the date of acceptance of such offer to 
purchase or lease shall be set forth in the purchase or lease 
agreement. All monies received by a salesma n salesperson 
shall be delivered immediately to the broker by whom he or 
she is employed. 

(b) In the event monies received by a broker licensee while 
acting in a fiduciary capacity are deposited in a trust or escrow 
account which bears interest, suc h b r oke r the broker having 
custody over such monies shall first secure from all parties 
having an interest in the monies written authorization for the 
deposit of such the monies in an interest-bearing account. 
Such authorization shall specify how and to whom the interest 
will be disbursed, and, if contained in an offer, contract, lease, 
or other transaction instrument, such authorization shall be set 
forth in a clear and conspicuous manner which shall 
distinguish it from other provisions of the instrument. 

(c) Closing statements shall be furnished to the buyer and 
the seller in the transaction at the closing or not more than five 
days after closing. 

(d) Trust or escrow accounts shall be so designated by the 
bank or savings and loan association in which the account is 
located, and all deposit tickets and checks drawn on said 
account as well as the monthly bank statement for the account 
shall bear the words "Trust Account" or "Escrow Account." 

(e) A broker licensee shall maintain and retain records 
sufficient to identify the ownership of a]] funds belonging to 
others. Such records shall be sufficient to show proper deposit 
of such funds m a trust or escrow account and to verify the 
accuracy and proper use of rrrs the trust or escrow accounts. 
account. The required records shall include including, but not 
be limited to: 

( 1 ) bank st atements: statements. 

(2) canceled checks which shall be referenced to the 
corresponding journal entry or check stub and to the 
corresponding sales transaction ledger sheet or for 
rental transactions, the corresponding property or 
owner ledger sheet: sheet. When a check is used to 



(3) 



(4) 



(5) 



disburse funds for more than one sales transaction, 
owner, or property, the check shall bear a notation 
identifying each sales transaction, owner, or 
property for which disbursement is made, including 
the amount disbursed for each, and the 
corresponding sales transaction, property, or owner 
ledger entries. When necessary, the check notation 
may refer to the required information recorded on a 
supplemental disbursement worksheet which shall 
be cross-referenced to the corresponding check. 
deposit tickets tickets. For a sales transaction, the 
deposit ticket shall identify the property and the 
parties involved and a reference to the 
corresponding sales transaction ledger entry. For a 
rental transaction, the deposit ticket shall identify 
the remitter of the funds deposited, the tenant, and 
the corresponding property or owner ledger entry. 
When a single deposit ticket is used to deposit funds 
collected for more than one purpose, sales 
transaction, property owner, or property, the 
required information shall be recorded on the ticket 
for each purpose, sales transaction, owner, or 
property, or the ticket may refer to the same 
information recorded on a supplemental deposit 
worksheet which shall he cross-rclerenced to the 
corresponding deposit ticket, and. if necessary, a 



sup pl e m e n tal 



worKsnect lor each deposit ticket 
i de nt if y i n g the p r operty and the parties to each 
t r a n sa c tio n lor which funds are deposited: 
a separate ledger sheet for each sales transaction and 
for each properly or owner of property managed by 
the broker identifying the property, the parties to the 
transaction, the amount, date, and purpose of the 
deposits and from whom received, the amount, date, 
check number, and purpose of disbursements and to 
whom paid, and the running balance of funds on 
deposit for the particular sales transaction or or. in a 
rental transaction, the particular property or owner 
of properly; property. 

a journal or check stubs identifying each transact i on 
and showing in chronological sequence each deposit 
and disbursement of monies to and from the trust or 
escrow account, including the amount, date, and 
purpose of the deposits and from w horn received. 
and the amount, date, check number, and purpose of 
disbursements and to whom paid. The journal or 
check stubs shall also identify the corresponding 
sales transaction ledger sheet and any corresponding 
supplemental worksheet, or for a rental transaction, 
the corresponding property or owner ledger sheet 
and any corresponding supplemental worksheet, and 
a running balance for all funds in the account; 
account. 
(6) copies of contracts, leases and management 
ag r eem en ts : agreements. 



14:10 



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November 15, 1999 



775 



PROPOSED RULES 



(7) 
(8) 



management 



closing statements and property 

stateme n ts: and statements. 

any other documents not otherwise described herein 

necessary and sufficient to verify and explain record 

entries. 
A broker shall m aintain records Records of all receipts and 
disbursements of trust or escrow monies shall be maintained in 
such a manner as to create a clear audit trail from deposit 
tickets and canceled checks to check stubs or journals and to 
the ledger sheets. A b rok er must r eco n cile ledger Ledger 
sheets and rrfs journals or check stubs must be reconciled to 
the trust or escrow account bank statements on a monthly 
basis. A br o ke r shall create To be sufficient, records of trust or 
escrow monies must include a worksheet for each such 
monthly reconciliation and r etain it as part of his records. 
showing the ledger sheets, journals or check stubs, and bank 
statements to be in agreement and balance. 

(f) All trust or escrow account records shall be made 
available for inspection by the Commission or its authorized 
representatives in accordance with Rule .0108 of this Section. 

(g) In the event of a dispute between the seller and buyer or 
landlord and tenant over the return or forfeiture of any deposit 
other than a residential tenant security deposit held by a 
broker, licensee , the br oke r licensee shall retain said deposit in 
rrrs a trust or escrow account until he the licensee has obtained 
a written release from the parties consenting to its disposition 
and or until disbursement is ordered by a court of competent 
jurisdiction. If it appears to a broker holding a disputed 
deposit that a party has abandoned his or her claim, the broker 
may disburse the money to the other claiming parties 
according to their written agreement provided that the broker 
first makes a reasonable effort to notify the party who has 
apparently abandoned his or her claim and provides that party 
with an opportunity to renew his or her claim to the disputed 
funds. 

(h) A broker may transfer earnest money deposits in his or 
her possession collected in connection with a sales transaction 
from his or her trust account to the closing attorney or other 
settlement agent not more than ten days prior to the anticipated 
settlement date. A broker or salesman licensee shall not dis- 
burse prior to settlement any earnest money in his or her 
possession for any other purpose without the written consent 
of the parties. 

(i) The funds of a property owner association, when 
collected, maintained or disbursed by a licensee licensee, of 
the Co mmi ss i on, are trust monies and shall be treated as such 
in the manner required by this Rule. 

(j) Every b r oker o r salesman licensee shall safeguard the 
money or property of others coming into his or her possession 
in a manner consistent with the requirements of the Real Estate 
License Law and the rules adopted by the Commission. A 
licensee shall not convert the money or property of others to 
his or her own use. apply such money or property to a purpose 
other than that for which it was paid or entrusted to hrrrt: him 
or her, or permit or assist any other person in the conversion or 
misapplication of such money or property. 

(k) In addition to the records required by Paragraph (e) of 



this Rule, a licensee acting as agent for the landlord of a 
residential property used for vacation rentals shall create and 
maintain a subsidiary ledger sheet for each property or owner 
of such properties onto w hich all funds collected and disbursed 
arc identified m categories by purpose. On a monthly basis, 
the licensee shall reconcile the subsidiary ledger sheet to the 
corresponding property or property owner ledger sheet. 



Authority G.S. 93A-3(c). 

.0109 BROKERAGE FEES AND COMPENSATION 

(a) A licensee shall not receive, either directly or indirectly, 
any commission, rebate or other valuable consideration of 
more than nominal value from a vendor or a supplier of goods 
and services for an expenditure made on behalf of hrs the 
licensee's principal in a real estate transaction without the 
written consent of the licensee's principal. 

(b) A licensee shall not receive, either directly or indirectly, 
any commission, rebate or other valuable consideration of 
more than nominal value for services which he the licensee 
recommends, procures, or arranges relating to a real estate 
transaction for any party, without full disclosure to such party; 
provided, however, that nothing in this Rule shall be construed 
to permit a licensee to accept any fee. kickback or other 
valuable consideration that is prohibited by the Real Estate 
Settlement Procedures Act of 1974 (12 USC 2601 et. seq.) or 
any rules and regulations promulgated by the United States 
Department of Housing and Urban Development pursuant to 
such Act. 

(c) The Commission shall not act as a board of arbitration 
and shall not compel parties to settle disputes concerning such 
matters as the rate of commissions, the division of 
commissions, pay of sa l esmen, salespersons, and similar 
matters. 

(d) A licensee shall not undertake in any manner, any 
arrangement, contract, plan or other course of conduct, to 
compensate or share compensation with unlicensed persons or 
entities for any acts performed in North Carolina for which 
licensure by the Commission is required. 

Authority G.S. 93A-3(c). 

.0110 BROKER-IN-CHARGE 

(a) Every real estate firm shall designate a broker to serve 
as the broker-in-charge at its principal office and a broker to 
serve as broker-in-charge at any branch office. No broker 
shall be broker-in-charge of more than one office or branch 
office. If a firm shares office space with one or more other 
firms, one broker may serve as broker-in-charge of each firm 
at that location. No office or branch office of a firm shall have 
more than one designated broker-in-charge. A broker 
practicing alone shall designate himself or herself as a broker- 
in-charge. Each broker-in-charge shall make written 
notification of his or her status as broker-in-charge to the 
Commission on a form prescribed by the Commission within 
10 days following the broker's designation as broker-in- 
charge. The broker-in-charge shall assume the responsibility 



776 



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November 15, 1999 



14:10 



PROPOSED RULES 



at his or her office for: 

( 1 ) the retention and display of current license renewal 
pocket cards by all brokers and salesmen 
salespersons employed at the office for which he or 
she is broker-in-charge; the proper display of 
licenses at such office in accordance with Rule 
.0101 of this Section: and assuring that each licensee 
employed at the office has complied with Rules 
.0503, .0504 and .0506 of this Subchapter: 

(2) the proper notification to the Commission of any 
change of business address or trade name of the firm 
and the registration of any assumed business name 
adopted by the firm for its use; 

(3) the proper conduct of advertising by or in the name 
of the firm at such office: 

(4) the proper maintenance at such office of the trust or 
escrow account of the firm and the records 
pertaining thereto: 

(5) the proper retention and maintenance of records 
relating to transactions conducted by or on behalf of 
the firm at such office, including those required to 
be retained pursuant to Rule .0108 of this Section: 

(6) the proper supervision of salesmen salespersons 
associated with or engaged on behalf of the firm at 
such office in accordance with the requirements of 
Rule .0506 of this Subchapter: and 

(7) the verification to the Commission of the experience 
of any sa l esman salesperson at such office who may- 
be applying for licensure as a broker. 

(b) When used in this Rule, the term: 

( 1 ) "Branch Office" means any office in addition to the 
principal office of a broker which is operated in 
connection with the broker's real estate business; 
and 

(2) "Office" means any place of business where acts are 
performed for which a real estate license is required. 

(c) A broker-in-charge must continually maintain his or her 
license on active status. 

(d) Each broker-in-charge shall notify the Commission in 
writing of any change in his or her status as broker-in-charge 
within 10 days following the change. Upon written request of 
a salesma n salesperson within five years after termination of 
his or her association with a broker-in-charge. the broker-in- 
charge shall provide the s al e sma n , salesperson, in a form pre- 



scribed by the Commission, an accurate written statement 
regarding the number and type of properties listed, sold, 
bought, leased, or rented for others by the salesma n 
salesperson while under the supervision of the broker-in- 
charge. 

(e) A licensed real estate firm which demonstrates on a 
form prescribed by the Commission that it has qualified for 
licensure solely for the purpose of receiving compensation for 
brokerage services furnished by its principal broker through 
another firm, and that no person is affiliated with it other than 
its principal broker, shall not be required to designate a broker- 
in-charge. 

(f) Every broker-in-charge shall complete the Commission's 
broker-in-charge course at least once every f i \ e years 
following the effective date of this Rule. Every broker 
designated as a broker-in-charge after the effective date of this 
Rule shall complete the Commission's broker-in-charge 
course within 90 days following designation and at least once 
every I'i ve years thereafter for so long as he or she remains 
hrokcr-in-charge. 

Authority G.S. 93A-2; 93A-3(c); 93A-4. 

.0113 REPORTING CRIMINAL CONVICTIONS 

Any broker or sales m a n salesperson who is convicted of any 
felony or misdemeanor or who has disciplinary action taken 
against him or her m connection with an\ other professional 
license shall file with the Commission a written report of such 
conviction within 60 days of the final judgment or final order 
in the case. A form for this report is available from the 
Commission. 

Authority G.S. 93A-3(c); 93A-6(a); 93A-6(a)(10); 93A-6(b)(2). 

.0114 RESIDENTIAL PROPERTY DISCLOSURE 
STATEMENT 

(a) Every owner of real property subject to a transfer of the 
type contemplated by G.S. 47E-I. 47E-2. and 47E-3, shall 
complete the following residential property disclosure 
statement and furnish a copy of the complete statement to a 
purchaser in accordance with the requirements of G.S. 47E-4. 
The form shall bear the seal of the North Carolina Real Estate 
Commission and shall read as follows: 



(N.C. REAL ESTATE COMMISSION SEAL] 

STATE OF NORTH CAROLINA 
RESIDENTIAL PROPERTY DISCLOSURE STATEMENT 

Instructions to Property Ow ners 

North Carolina General Statute 47E requires owners of residential real estate (single-family homes and buildings 
with up to four dwelling units) to furnish purchasers a property disclosure statement. This form is the only one 
approved for this purpose. A disclosure statement must be furnished in connection with the sale, exchange, option 



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777 



PROPOSED RULES 



and sale under a lease with option to purchase (unless the tenant is already occupying or intends to occupy the 
dwelling). A disclosure statement is not required for some transactions, including the first sale of a dwelling which 
has never been inhabited and transactions of residential property made pursuant to a lease with option to purchase 
where the lessee occupies or intends to occupy the dwelling. For a complete list of exemptions, see N.C.G.S. 47E-2. 

2. You must check □ one of the boxes for each of the 20 questions on the reverse side of this form 

a. If you check "Yes" for any question, you must describe the problem or attach a report from an engineer, 
contractor, pest control operator or other expert or public agency describing it. If you attach a report, you will 
not be liable for any inaccurate or incomplete information contained in it so long as you were not grossly 
negligent in obtaining or transmitting the information. 

b. If you check "No", you are stating that you have no actual knowledge of any problem. If you check "No" 
and you know there is a problem, you may be liable for making an intentional misstatement. 

c. If you check "No Representation", you have no duty to disclose the conditions or characteristics of the 
property, even if you should have known of them. 

* If you check "Yes" or "No" and something happens to the property to make your Statement incorrect or 
inaccurate (for example, the roof begins to leak), you must promptly give the purchaser a corrected Statement 
or correct the problem. 

3. If you are assisted in the sale of your property by a licensed real estate broker or sal esma n , salesperson, you are still 
responsible for completing and delivering the Statement to the purchasers; and the broker or salesman salesperson 
must disclose any material facts about your property which they know or reasonably should know, regardless of 
your responses on the Statement. 

4. You must give the completed Statement to the purchaser no later than the time the purchaser makes an offer to 
purchase your property. If you do not, the purchaser can. under certain conditions, cancel any resulting contract 
(See "Note to Purchasers" below). You should give the purchaser a copy of the Statement containing your 
signature and keep a copy signed by the purchaser for your records. 



Note to Purchasers 

If the owner does not give you a Residential Property Disclosure Statement by the time you make your 
offer to purchase the property, you may under certain conditions cancel any resulting contract and be 
entitled to a refund of any deposit monies you may have paid. To cancel the contract, you must 
personally deliver or mail written notice of your decision to cancel to the owner or the owner's agent 
within three calendar days following your receipt of the Statement, or three calendar days following the 
date of the contract, whichever occurs first. However, in no event does the Disclosure Act permit you to 
cancel a contract after settlement of the transaction or (in the case of a sale or exchange) after you have 
occupied the property, whichever occurs first. 



In the space below, type or print in ink the address of the property (sufficient to identify it) and your name. Then 
sian and date. 



778 



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Property Address: 


Owner's Name(s): 


Owner) s) acknowledge having examine 

and correct as of the date signed. 

Owner Signature: 


d this Statement 


he! 


ore signin 


g and that all information is true 
Date 


Owner Signature: 












Date 


Purchaser! s) acknowledge receipt of a copy of this disclosure statement; that they have examined it before 
signing; that they understand that this is not a warranty by owner or owner's agent: that it is 
not a substitute for any inspections they may wish to obtain; and that the representations are made by 
the owner and not the owner's agent! si or subagent(s). Purchaser! s) are encouraged to obtain their 
own inspection from a licensed home inspector or other professional. 

Purehaser Signature: Date 


Purchaser Signature: 












Date 



Property Address/Description : 



[Note; In this form, "property" refers only to dwelling unit(s) and not sheds, detached garages or other buildings.] 
Regarding the property identified above, do you know of any problem (malfunction or defect) with any of the following: 



1 . FOUNDATION. SLAB. FIREPLACES/CHIMNEYS. FLOORS. WINDOWS (INCLUDING STORM 
WINDOWS AND SCREENS). DOORS. CEILINGS. INTERIOR AND EXTERIOR WALLS. 
ATTACHED GARAGE. PATIO. DECK OR OTHER STRUCTURAL COMPONENTS including any 
modifications to them? 

a. Siding is □ Masonry □ Wood D Composition/Hardhoard □ Vinyl □ Synthetic Stucco □ Other 

b. Approximate age of structure'.' 

2. ROOF (leakage or other problem)? 

a. Approximate age of roof covering? 

3. WATER SEEPAGE. LEAKAGE, DAMPNESS OR STANDING WATER in the basement, crawl space 
or slab? 

4. ELECTRICAL SYSTEM (outlets, wiring, panel, switches, fixtures etc.)' 7 

5. PLUMBING SYSTEM (pipes, fixtures, water heater, etc.)? 

6. HEATING AND/OR AIR CONDITIONING 7 

a. Heat Source is: □ Furnace □ Heat Pump □ Baseboard □ Other 

b. Cooling Source is: □ Central Forced Air D Wall/Window Unit(s) 

□ Other 

C. Fuel Source is: □ Electricity □ Natural Gas □ Propane □ Oil □ Other 

7. WATER SUPPLY (including water quality, quantity and water pressure)? 



No Repre- 
Yes* No sentation 



z 



z 



Z 







z 






□ 


□ 


□ 


z 
□ 


□ 


z 


z 


□ 


z 


z 


r 


□ 


z 


□ 


z 


z 
□ 

z 
z 


z 


□ 


z 



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November 15, 1999 



779 



PROPOSED RILES 

a. Water supply is: □ City/County □ Community System □ Private Well 

□ Other 

b. Water pipes are: □ Copper □ Galvanized □ Plastic □ Other 

□ Unknown 

8. SEWER AND/OR SEPTIC SYSTEM' 7 D 

a. Sewage disposal system is: □ Septic Tank □ Septic Tank with Pump 

□ Community System □ Connected to City/County System 

□ City/County System available D Straight pipe (wastewater does not go into a septic or 
other sewer system [note: use of this type of system violates state law]) 

□ Other 

9. BUILT-IN APPLIANCES (RANGE/OVEN. ATTACHED MICROWAVE. HOOD/FAN, 
DISHWASHER. DISPOSAL, etc.)? □ 

m OTHER SYSTEMS AND FIXTURES: CENTRAL VACUUM. POOL. HOT TUB. SPA. ATTIC 

FAN. EXHAUST FAN. CEILING FAN. SUMP PUMP. IRRIGATION SYSTEM. TV CABLE 
WIRING OR SATELLITE DISH, OR OTHER SYSTEMS 7 - B 

Eh DRAINAGE. GRADING OR SOIL STABILITY OF LOT? B 

E* PRESENT INFESTATION. OR DAMAGE TROM PAST INFESTATION OF WOOD 

DESTROYIN G INSECTS OR ORGANISMS which has n ot been r epai r ed? B 

Also regarding the property identified above, including the lot, other improvements, and fixtures located 
thereon, do you know of any: 

10. PROBLEMS WITH PRESENT INFESTATION. OR DAMAGE FROM PAST INFESTATION OF 
WOOD DESTROYING INSECTS OR ORGANISMS which has not been repaired? 

D 

J_L PROBLEMS WITH DRAINAGE. GRADING OR SOIL STABILITY OF LOT? D 

12. OTHER SYSTEMS AND FIXTURES: CENTRAL VACUUM. POOL, HOT TUB. SPA. ATTIC FAN. 
EXHAUST FAN. CEILING FAN. SUMP PUMP, IRRIGATION SYSTEM. TV CABLE WIRING OR 
SATELLITE DISH. OR OTHER SYSTEMS? Q 

1 3. ROOM ADDITIONS OR OTHER STRUCTURAL CHANGES ? □ 

14. ENVIRONMENTAL HAZARDS (substances, materials or products) including asbestos, formaldehyde, 
radon gas. methane gas. lead-based paint, underground storage tank, or other hazardous or toxic material 
(whether buried or covered), contaminated soil or water, or other environmental contamination)? □ 

15. COMMERCIAL OR INDUSTRIAL NUISANCES (noise, odor, smoke, etc.) affecting the property? . . □ 

16. VIOLATIONS OF BUILDING CODES. ZONING ORDINANCES, RESTRICTIVE COVENANTS OR 
OTHER LAND-USE RESTRICTIONS? D 

a. Is the property a kit in an unapproved subdivision? □ 

17. UTILITY OR OTHER EASEMENTS. SHARED DRIVEWAYS. PARTY WALLS OR 
ENCROACHMENTS FROM OR ON ADJACENT PROPERTY? □ 

18. LAWSUITS. FORECLOSURES. BANKRUPTCY. TENANCIES. JUDGMENTS. TAX LIENS. 



□ 



□ 

□ 



□ 

B 
B 



□ 

□ 

B 
B 



□ □ 

□ Q 

□ Q 

□ D 



□ 


D 


□ 


D 


□ 


□ 


l2 


D 



□ 



780 



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November 15, 1999 



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PROPOSED RULES 



PROPOSED ASSESSMENTS. MECHANICS" LIENS. MATERIALMENS" LIENS. OR NOTICE 
FROM ANY GOVERNMENTAL AGENCY thai could affect title to the property? □ 

19. OWNERS" ASSOCIATION OR "COMMON AREA" EXPENSES OR ASSESSMENTS? □ 

20. FLOOD HAZARD or that the property is in a FEDERALLY-DESIGNATED FLOOD PLAIN'' □ 

2L FOR OCEANFRONT OR INLET PROPERTY, previous use of sandbags for erosion control on the 

property: 1 D 

a. A sandbag erosion control structure was installed on (date) 



□ □ 

□ □ 

□ □ 

□ □ 



* If you answered "Yes" to any of the above questions, please explain (Attach additional sheets, if necessary! 



(b) The form described in Paragraph (a) of this Rule may be reproduced, but the form shall not be altered or amended in any 
way. 



Authority G.S. 47E-4(b): 93A-3(c); 93A-6. 

SECTION .0300 - APPLICATION FOR LICENSE 

.0301 FORM 

Pcrsrnrs An individual or business entity who wish wishes to 
file appl i cat i o n s an application for a broker or sa l es m a n 
salesperson license shall make application on a form 
prescribed by the Commission and can obtain the required 
form upon request to the Commission. In general, the 
application form for an individual calls for information such as 
the applicant's name and address, the applicant's social security 
number, a re ce nt passport s ize photog r a p h of the ap p li c a n t. 
satisfactory proof of the applicant's identity, places of 
residence, education, prior real estate licenses, and such other 
information necessary to identify the applicant and determine 
his the applicant's qualifications and fitness for licensure. 
The application form lor a business entity is described m Rule 
.0502 of this Subchapter. 

Authority G.S. 93A-3(c); 93A-4(a),(b),(d); 150B-11. 

.0302 FILING AND FEES 

(a) Completed applications must b e received in th e 
Comm i ssio n 's office o r postmarked n o t late r than the fi lin g 
date e s t ablished by t he executive director fo r a sc h edu led 
e xa mina tion and must be accompanied by the a p p r o pr iate fee . 
A fil i ng date shall be no m o re than 40 days pr i o r t o a 
scheduled examination. — Once t he - a pp l icat ion has b e e n filed 
and process e d, the appl i cat i o n f e e may not be refunded. All 
applications for a real estate license must be properly 
completed and must be submitted to the Commission's office 



accompanied by the appropriate application fee. Examination 
scheduling of qualified applicants who are required to pass the 
real estate licensing examination shall be accomplished [n 
accordance with Rule .0401 of thus Subchapter 

(b) The license application tee shall be thirty dollars 
($30.00). Applicants electing to take the licensing 



examination by computer must pay, m addition to the license 
application fee, the examination lee charged by the 
Commission's authorized testing service. The following fees 
shall be cha r ged: 

f+1 application fo r n ew b r oke r license $30.00. 

r2l app l ication for n ew salesman licens e $30.00. 

For the pur poses of th i s Su b s e ct i o n , the tc i ni. bioker. shall 
refer te r both a n in d i vidual a n d a b usiness e n ti t y. 

(c) An applicant shall update information provided in 
connection with an application or submit a newly completed 
application form without request by the Commission to assure 
that the information provided in the application is complete 
current and accurate. Failure to submit updated information 
prior to the issuance of a license may result in disciplinary 
action against a licensee in accordance with G.S. 93A-6(b)( 1 ). 
In the event that the Commission requests an applicant to 
submit updated information or to provide additional 
information necessary to complete the application and the 
applicant fails to submit such information within 60 90 days 
following the Commission's request, the Commission shall 
cancel the applicant's application. An applicant whose license 
application has been canceled and who wishes to obtain a real 
estate license must start the licensing process over by 
submitting a written application to the Commission upon a 
prescribed form and pav ing all required fees. 

Authority G.S. 93A-4(a),(d). 

.0303 PAYMENT OF APPLICATION FEES 

Payment of application fees shall be made by certified ch eck 
or mo ne y o r der payable to the No r th Carolina Real Estate 
Commission. Commission in the form and manner acceptable 
to the Commission. Once an application has been filed and 
processed, the application fee mav not be refunded. Payment 
of lees tor taking the license examination hv computer shall he 
made directly to the Commission's authorized testing service 



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781 



PROPOSED RULES 



m the form and manner acceptable to the testing service. 

Authority G.S. 93A-3(c); 93A-4(a),(d)- 

.0304 EXPERIENCE QUALIFICATIONS FOR 
APPLICANTS 

(a) A broker applicant apply i ng on the basis of two years' 
full-time exper i ence as a licensed salesman m ust demonstrate 
that — rrrs — qualifying — experience — c onsisted — of — activities 
commonly performed by l i censed salesmen when l i sting, 
selling, buying, leas i ng, o r r en ti n g proper ti es for others and 
that such expe ri e n ce was obtai n ed while the salesman wa s 
pr ope r ly lice n sed and u n der the active supervision of a broke i - 
in-charge. — The number and type of properties listed, s old. 



^the 



examinations. 
(2) An applicant who elects to take the licensing 
examination by the paper and pencil method shall be 
scheduled for examination based on the date of 
application filing, the applicant's requested testing 
location and the Commission's published list of 
testing locations, schedule of examination dates and 
examination filing deadlines. For the purpose of 
meeting any examination filing deadline date, the 
completed application must be either received in the 
Commission's office or postmarked not later than 
the date in question. Applicants shall be given 
written notice of when and where to appear for 
examination. 
(b) Exce p t as p r o v id e d in Parag r a p h (c) of this Rule, an 
a p plica n t who has bee n scheduled fo r a pa rt icular examination 
date shall not be rescheduled for a late r examination date 
w i thout filing another application a n d fee unless a request to 



b o u gh t, leased or rented for othe r s by the applicant du r ing 

period for which experienc e as a salesman is claimed must be 

reasonably consistent with the amount of experience claimed. 

The appl i ca n t has the burde n of p r ov i ding documentation of 

hrs — qual i fyi n g — experience — as — may — be — r equi r ed — by — the be rescheduled is m ade at least 15 days in advance of the 

Com mi ss io n. 

tbl Experience obtained by a sales m a n salesperson or 
broker applicant in violation of law or rule may not be 
recognized by the Commission as fulfilling the requirements 
for licensu r e, licensure when the applicant is requesting the 
Commission to waive the prescribed education requireme nt 
based wholly or in pan on equivalent ex perience obtained by 
the applicant. 



scheduled e xa m inati o n date. — A scheduled examination date 
m ay only be postponed until one of the next two following 
s ch e du l ed examination dates, even if the postponement is due 
to an excused absence. — Ar r e q uest to post p one a schedu l e d 



ilicatio n and fee 



exami n atio n date without ti l ing anothe r applicatio n 

shal l be g r anted only once unless the ap p licant satisfies the 



Authority G.S. 93A-3(c); 93A-4. 

SECTION .0400 - EXAMINATIONS 

.0401 TIME AND PLACE FOR EXAMINATIONS 

(a) Examinations fo r broker's and salesma n 's licenses shall 
be scheduled at such times and places as dete rmi ned b y the 
executive — director. A pp lica n ts — s+rafl — tie — scheduled — for 



exami n ation based o n the date of application — fili n g — m 
accordance with the Commission's published schedule of 
examination dates and applicatio n f i ling dates. — Applicants 
s hall be given written notice of w h en a n d where to appear for 
examination. Licensing examinations for applicants found by 
the Commission to be qualified for the examination shall be 
scheduled as follows: 

( 1 ) An applicant who elects to take the licensing 
examination by computer shall be provided a notice 
of examination eligibility that shall be valid for a 
period of 90 days and for a single administration of 
the licensing examination. Upon receipt of a notice 
of examination eligibility from the Commission or 
from the Commission's authorized computer testing 
service, the applicant shall schedule the examination 
by contacting the testing service in accordance with 
procedures established by the testing service. The 
testing service will schedule applicants for 
examination at their choice of one of the 
Commission's established testing locations and will 
notify applicants of the time and place of their 



requirements foi — o b taining a n excused absence stated in 
Paragraph (c) of this Rule. Scheduled examinations may be 
postponed as follows: 

j 1 ) An examination for an applicant who has been 

scheduled for the computerized examination may be 

postponed provided the applicant makes the request 

for postponement directly to the Commission's 

authorized computer testing service m accordance 

with procedures established by the testing service. 

An applicant's computerized examination shall not 

be postponed beyond the 90 day period for which 

the applicant's notice of examination eligibility is 

valid. 

(2) An examination for an applicant who has been 

scheduled to take the examination by the paper and 

pencil method may be postponed provided the 

applicant makes the request for postponement 

directly to the Commission so that the request is 

received prior to the scheduled examination date. A 

scheduled examination date for a paper and pencil 

examination may only be postponed until one of the 

next two following scheduled examination dates . 

A request to postpone a scheduled licensing examination 

without starting the licensing process over by filing another 

application and paving all required fees shall be granted only 

once unless the applicant satisfies the requirements for 

obtaining an excused absence stated in Paragraph (c) of this 

Rule. 

(c) An applicant may be granted an excused absence from a 
scheduled examination if he the applicant provides evidence 
satisfactory to the Commission that hrs the absence was the 
direct result of an emergency situation or condition which was 



782 



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PROPOSED RULES 



beyond the applicant's control and which could not have been 
reasonably foreseen by the applicant. A request for an 
excused absence must be promptly made in writing and must 
be supported by appropriate documentation verifying the 
reason for the absence. The following restrictions shall also 
apph to requests for excused absences: 

( 1 ) Requests lor excused absences from a scheduled 
computerized examination must be submitted 
directly to the computer testing service in 
accordance with procedures established by the 
testing service. A request for an excused absence 
from a computerized examination shall be denied if 
the applicant cannot be rescheduled and examined 
prior to expiration of the a pplicant's 90 day period 
of examination eligibility. 

(2) Requests for excused absences from a scheduled 
paper and pencil examination must be submitted 
directly to the Commission. An applicant whose 
absence from a scheduled paper and pencil 
examination is excused may be rescheduled tor one 
of the next two following scheduled examination 
dates. A request for an excused absence from a 
scheduled paper and pencil examination received 
more than 15 days after the examination date shall 
be denied unless the applicant was unable to file a 
timely request due to the same circumstances that 
prevented the applicant from taking the 
examination. An applicant shall be limited to three 
excused absences from a paper and pencil 
examination without filing another application and 
fee. 

Authority G.S. 93A-4(b),(d). 

.0402 SUBJECT MATTER AND PASSING SCORES 

(a) The salesman — and — broker real estate licensing 
examination shall test applicants on the following general 
subject areas: 

( 1 ) real estate law; 

(2) real estate brokerage law and practices; 

(3) the r eal estate l i cense law. Real Estate License Law, 
rules of the Commission, and the Commission's trust 
account guidelines; 

(4) real estate finance; 

(5) real estate valuation (appraisal); 

(6) real estate mathematics; and 

(7) related subject areas. 

(b) In order to pass the salesman or broker real estate 
licensing examination, an applicant must attain a score equa l 
to at least 75 pe r ce n t of t h e to t al point value fo r t he questio n s 
on t h e e xamination, at least equal to the passing score 
established by the Commission in compliance with 
psychometric standards for establishing passing scores for 
occupational licensing examinations as set forth m the 
"Standards for Educational and Psychological Testing" jointly 
promulgated by the American Educational Research 



Association, the American Psychological Association, and the 
National Council on Measurement m Education. Passing 
applicants will receive only a score of "pass"; however, failing 
applicants will be informed of their actual score. A passing 
examination score obtained by a license applicant shall be 
recognized as valid for a period of one year from the date of 
examination, during which time the applicant must fully 
satisfy any remaining requirements for licensure that were 
pending at the time of examinatio n : provided tha t the running 



if the ' 



of 



oi tne one-year period shall be tolled by issuance of a notice 
hear i ng rega rdin g the applicant's q ual i fi cations for licensure 



r en d ere d pu r suant to G.S. 



un ti l a ii n a i age n cy decision is renu c r t 
I50B-42. — The a pp lica tio n o f a n applica n t with a passi n g 
examinat i o n — sco re — who — fairs — to — sa t isfy — arl — re mai nin g 
r equir em e n ts t o i l i c ensure withi n o ne yea r shall be ca n cel e d 
a n d the a p plica n t shal l b e r e quired to re a ppl y a n d sat i sfy a ll 
r equ i rem en ts fo r l ice n su r e, includi n g re tak in g a n d pass i ng the 
license e xami n atio n , i n o r de r to be eligible for l i censure. 
examination. The one-year examination recognition period 
shall not commence until a final agency decision is rendered 
pursuant to G.S. I50B-42 whenever any substantive issue 
regarding an applicant's honesty, truthfulness and integrity j_s 
under consideration by the Commission; provided that the 
failure of an applicant to provide requested information jn 
connection with his or her application shall not delay the 
running of the one-year examination recognition period. 

Authority G.S. 93A-4(b),(d). 

.0403 REAPPLYING FOR EXAMINATION 

If a n ap pli cant fai l s to pass a n examination or fails to appear 



fo r a n d take 



;heduled, 



<e a n y e xam in atio n fo r w hic h he h as h een set 
he sha l l make w r itte n applicat i on t o th e Commission upon a 



iale fee, if he 



p rescribed fo rm accompanied b y the appropna 
wis h es t o o btai n a r eal estate l i ce nse . 

(a) The license application of an individual found by the 
Commission to be qualified for the licensing examination shall 
be immediately canceled upon the occurrence of any of the 
following events: 

( 1 ) the applicant fails to pass a licensing examination; 

(2) the applicant fails to appear for and take any 
examination for which the applicant has been 
scheduled without having the applicant's 
examination postponed or absence excused j_n 
accordance with Rule 0401(h) and (c) of this 
Section; or 

(3) the applicant allows the 90 day period of eligibility 
for examination by computer as prov ided for in Rule 
.0401(a) of this Section to expire without the 
applicant taking and passing the examination. 

(b) An individual whose license application has been 
canceled and who wishes to obtain a real estate license must 
start the licensing process over by submitting a written 
application to the Commission upon a prescribed form and 
paving all required lees. Subsequent examinations shall be 
scheduled in accordance with Rule .0401 of this Section. 



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783 



PROPOSED RULES 



Authority G.S. 93A-4(b),(d). 

.0404 CHEATING AND RELATED MISCONDUCT 

Applicants shall noi cheat or attempt to cheat on an 
examination by any means, including both giving and 
receiving assistance, and shall not communicate in any manner 
for any purpose with any person other than an examination 
supervisor during an examination. Applicants shall not disrupt 
the quiet and orderly administration of an examination in any 
manner. Violation of this Rule shall be grounds for dismissal 
from an examination, invalidation of examination scores, and 
denial of a real estate license, as well as for disciplinary action 
if the applicant is a licensed salesman, salesperson. 

Authority G.S. 93A-4(d), 

.0406 EXAMINATION REVIEW 

(a) An applicant who fails an examination may review hrs 
the examination at such times and places as a r e scheduled by 
th e ex e cutive director. — A request t o re vi ew an exa m i n atio n 
m ust — be — m ade — not later than — the — request deadline date 
established — by — the — executive — di r ecto r — for — a — scheduled 
examination review date. Failure to r equest a n a pp ointment to 
r eview an examination by the request deadline date shall 
c o n stitute a waive r of the r ight to review such examination, as 
provided m Paragraphs (hi and (c ) of this Rule. Applicants 
who pass an examination may not review their the 
examination. Applicants who review their an examination 
may not be accompanied by any other person at a review 
session, nor may any other person review an examination on 
behalf of an applicant. 

(b) An applicant who fails an examination taken by 
computer may review the examination on computer at the 
testing center immediately following completion of the 
examination and receipt of the applicant's examination results. 
An applicant eligible for examination review who fails to 
review the examination on computer at the testing center 
immediately following completion of the examination will be 
deemed to have waived the right to review the examination. 

thi (£i An applicant who fails an examination taken by the 
paper and pencil method may review the examination at such 
times and places as are scheduled by the Executive Director 
provided the applicant makes a request to review the 
examination not later than the request deadline date 
established by the Executive Director for a scheduled 
examination review date. Failure to request an appointment to 
review an examination by the request deadline date shall 
constitute a waiver of the right to review such examination. 
An applicant who has taken the examination by the paper and 
pencil method may be granted an excused absence from a 
scheduled examination review if he the applicant provides 
evidence satisfactory to the Commission that hrs the absence 
was the direct result of an emergency situation or condition 
which was beyond the applicant's control and which could not 
have been reasonably foreseen by the applicant, foreseen. A 
request for an excused absence must be promptly made in 
writing and must be supported by appropriate documentation 



verifying the reason for the absence. A request for an excused 
absence received more than 15 days after the scheduled 
examination review will be denied unless the applicant was 
unable to file a timely request due to the same circumstances 
that prevented the applicant from attending the examination 
review. An applicant who fails to appear for a scheduled 
examination review and who does not obtain an excused 
absence in accordance with this Rule shall be deemed to have 
waived irrs the right to review his the examination. 

Authority G.S. 93A-4(d). 

SECTION .0500 - LICENSING 

.0503 LICENSE RENEWAL; PENALTY FOR 

OPERATING WHILE LICENSE EXPIRED 

(a) All real estate licenses issued by the Commission under 
G.S. 93A, Article 1 shall expire on the 30th day of June 
following issuance. Any licensee desiring renewal of a license 
shall apply for renewal within 45 days prior to license 
expiration by submitting a renewal application on a form 
prescribed by the Commission and submitting with the 
application the required renewal fee of tfrrrtv thirty-five dollars 
( $30.00 ) . ($35.00). 

(b) Any person desiring to renew his or her license on 
active status shall, upon the second renewal of such license 
following initial licensure, and upon each subsequent renewal, 
have obtained all continuing education required by G.S. 93A- 
4 A and Rule .1702 of the Subchapter. 

(c) A person renewing a license on inactive status shall not 
be required to have obtained any continuing education in order 
to renew such license; however, in order to subsequently 
change his or her license from inactive status to active status, 
the licensee must satisfy the continuing education requirement 
prescribed in Rule . 1 703 of the Subchapter. 

(d) Any person or firm which engages in the business of a 
real estate broker or salesman salesperson while hrs his, her, or 
its license is expired is subject to the penalties prescribed in 
G.S. 93 A. 

Authority G.S. 93A-3(c); 93A-4(c),(d); 93A-4A; 93A-6. 

.0505 REINSTATEMENT OF EXPIRED LICENSE, 
REVOKED. SURRENDERED OR 
SUSPENDED LICENSE 

(a) Licenses expired for not more than 12 months may be 
reinstated upon proper application and payment of the thirty 
thirty-five dollar ($30.00) (S35.00) renewal fee plus five dollar 
($5.00) late filing fee. In order to reinstate such license on 
active status, the applicant shall also present evidence 
satisfactory to the Commission of having obtained such 
continuing education as is required by Rule .1703 of this Sub- 
chapter to change an inactive license to active status. A person 
reinstating such a license on inactive status shall not be 
required to have obtained any continuing education in order to 
reinstate such license; however, in order to subsequently 



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change his or her reinstated license from inactive status to 
active status, the licensee must satisfy the continuing 
education requirement prescribed in Rule .1703 of this 
Subchapter, and be supervised by a broker-in-charge in 
compliance with the requirements of Rule .0506 of this 
Section. 

(b) Reinstatement of licenses expired for more than 12 
months may be considered upon proper application and 
payment of a thirty dollar ($30.00) fee. Applicants must 
satisfy the Commission that they possess the current 
knowledge, skills and competence, as well as the truthfulness, 
honesty and integrity, necessary to function in the real estate 
business in a manner that protects and serves the public 
interest. To demonstrate current knowledge, skills and 
competence, the Commission may require such applicants to 
complete real estate education or pass the license examination 
or both. 

(c) Reinstatement of a revoked license may be considered 
upon proper application and payment of a thirty dollar 
($30.00) fee. Applicants must satisfy the same requirements 
as those prescribed in Paragraph (b) of this Rule for 
reinstatement of licenses expired for more than 12 months. 

(d) Reinstatement of a license surrendered under the 
provisions of G.S. 93A-6(e) may be considered upon 
termination of the period of surrender specified in the order 
approving the surrender and upon proper application and 
payment of a thirty dollar ($30.00) fee. Applicants must 
satisfy the same requirements as those prescribed in Paragraph 
(b) of this Rule for reinstatement of licenses expired for more 
than 12 months. 

(e) When a license is suspended by the Commission, the 
suspended license shall be restored at the end of the period of 
active suspension: however, in order for the license to be 
restored on active status, the licensee shall be required to also 
demonstrate that he has satisfied the continuing education 
requirement for license activation prescribed by Rule .1703 of 
this Subchapter and is supervised by a broker-in-charge in 
compliance with the requirements of Rule .0506 of this 
Section, if applicable. 



complaint by submitting the changes to the Commission in 
writing. 

( c ) Wh en a complaint is not ve ri f i ed b y t h e pe r son making 
the complaint. thtr Commission. through i ts legal counsel may 
co n sid er th e complai n t o n its ow n motion. When a complaint 
has not been submitted in conformity with this rule, the 
Commission's legal counsel ma\ initiate an investigation if the 
available mlormalion is suHicicnt to create a reasonable 
suspicion that any licensee or other person or entity mav have 
committed a violation of the provisions of the Real Estate 
License Law or the rules adopted by the Commission. 

(d) There shall be no specific forms required for answers, 
motions, or other pleadings relating to contested cases before 
the Commission, except they shall be in writing. To be 
sufficient, the document must reasonably apprise the 
Commission of the matters it alleges or answers. To be 
considered by the Commission, every answer, motion, request 
or other pleading must be submitted to the Commission in 
writing or made during the hearing as a matter of record. 

(e) Whe n t he Commission, upo n its ow n m otio n or upo n 
the comp lai nt of a n y pe r son, com m e n ces During the course of 
an investigation of a licensee, the Com m iss i o n Commission, 
through Us legal counsel or other staff, may send the licensee a 
Letter of Inquiry requesting the licensee to respond. The 
Letter of Inquiry, or attachments thereto, shall set forth the 
subject matter being investigated. Upon receipt of the Letter 
of Inquiry, the licensee shall respond to the Co mm iss i o n 
within 14 calendar days. Such response shall include a full 
and fair disclosure of all information requested. Licensees 
shall include with their written response copies of all 
documents requested b y the Co m missio n in the Letter of 
Inquiry. 

(f) Hearings in contested cases before the Commission shall 
be conducted according to the provisions of Article 3A of 
Chapter 150B of the General Statutes of North Carolina. 

(g) Persons who make complaints are not parties to 
contested cases, but may be witnesses. 

Authority G.S. 93A-3(d); 93A-6(a); 150B-38(h). 



Authority GS. 93A-3(c); 93A-4(c),(d); 93A-4A. 

SECTION .0600 - REAL ESTATE COMMISSION 
HEARINGS 

.0601 COMPLAINTS/INQUIRIES/MOTIONS/ 
OTHER PLEADINGS 

(a) There shall he no specific form required for complaints. 
To be sufficient, a complaint shall be in writing, identify the 
respondent licensee and shall reasonably apprise the 
Commission of the facts which form the basis of the 
complaint. 

(b) When investigating a complaint, the scope of the 
Commission's investigation shall not be limited only to 
matters alleged in the complaint. In addition, a person making 
a complaint to the Commission may change his or her 



.0615 SETTLEMENTS 

The Commission may consider disposing of any contested 
matter he tore [t by consent order or upon stipulation of the 
respondent and the Commission's legal counsel. The 
Commission may approve or reject any proposal to dispose of 
a contested matter by consent or stipulation, however, any 
matter to which a respondent and the Commission's legal 
counsel have stipulated which is rejected by the Commission 
shall not thereafter bind the parties or the Commission. 
Except as mav he otherwise allowed by the presiding officer, 
all proposals to dispose of a contested matter must be m 
written form and signed by the respondent not later than two 
davs prior to the date set for the hearing of the matter, 
excluding any davs during which the Commission's offices are 



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785 



PROPOSED RULES 



Authority G.S. 93A-3(d); 93A-6(a); 150B-38(h). 
SECTION .1400 - REAL ESTATE RECOVERY FUND 

.1402 MULTIPLE CLAIMS 

(a) If at any time the Commission has notice of more than 
one application or potential claim for payment from the Real 
Estate Recovery Fund arising out of the conduct of a single 
licensee, the Commission may, in its discretion, direct that all 
applications filed before a date determined by the Commission 
be consolidated for hearing and payment. 

(b) When consolidation is appropriate, the Commission 
shall issue to the licensee and the applicants and potential 
claimants an Order of Consolidation setting forth the deadline 
for filing all applications to be consolidated. Upon the passing 
of the deadline, the Commission may, in its discretion, either 
extend the deadline or issue to the licensee and all applicants a 
notice of the time, date and place set for the hearing on the 
consolidated applications. 

fci — Cla i ms for which the Commission has r ece i ved n o 
notice under G.S. 93A- 17(a ) (2) o r fo r wh i c h n o applicatio n 
h as been filed p r io r to the deadl i ne set forth in the Order of 
Consolidation shall not be considered by the Commission until 
after — the — completion — o f all — proceedings — r elating — to — the 
consolidated applications and payment the r eo n . 

Authority G.S. 93A-]6(d); 93A-17; 93A-20. 

SECTION .1700 - MANDATORY CONTINUING 
EDUCATION 

.1703 CONTINUING EDUCATION FOR LICENSE 
ACTIVATION 

(a) A broker or salesman salesperson requesting to change 
an inactive license to active status on or after the licensee's 
second license renewal following his or her initial licensure 
shall be required to demonstrate completion of continuing 
education as described in Paragraph (b) or (c) of this Rule, 
whichever is appropriate. 

(b) If the inactive licensee's license has properly been on 
active status at any time since the preceding July 1. the 
licensee is considered to be current with regard to continuing 
education and no additional continuing education is required to 
activate the license. 

(c) If the inactive licensee's license has not properly been 
on active status since the preceding July 1, the licensee must 
make up any deficiency in his or her continuing education 
record for the previous two license per i ods, period and fully 
satisfy the continuing education requirement tor the current 
license period in order to activate the license. Any deficiency 
may be made up by completing, during the current license 
period or previous license period, approved continuing 
education elective courses; however, such courses will not be 
credited toward the continuing education requirement for the 
current license period. I n addition, i f the l i censee's de fici e n cy 
i ncluded the m andator; update cou r se fo r the immediate 



p rec ed i ng license period, the licensee must also complete, 
dur i ng the cur r ent license pe r iod, the mandatory update course 



for the 



- cu rr ent license period, however, such course shall be 
cr e d ited toward the continuing educatio n requirement for the 
c u rr e n t license period. — Regardless of the length of ti m e a 
license has been on inactive status, t h e maximum amount of 



continuing education credit hou r 



red to activate that 



■i r s requir 

license shall be 20 hours. When crediting elective courses for 
purposes of making up a continuing education deficiency, the 
maximum number of credit hours that will be awarded for any 
course is four hours. When evaluating a licensee's continuing 
education record to determine eligibility for active status, the 
licensee shall be deemed eligible for active status if the 
licensee has fully satisfied the continuing education 



requirement for the current license period and has taken any 
two additional continuing education courses since the 
beginning of the previous license period, even if the licensee 



had a continuing education deficiency prior to the beginning of 



the previous license period. 
Authority G.S. 93A-3(c); 93A-4A. 

.1708 EQUIVALENT CREDIT 

(a) A licensee may request that the Commission award 
continuing education credit for a course taken by the licensee 
that is not approved by the Commission, or for some other real 
estate education activity, by making such request on a form 
prescribed by the Commission and submitting a nonrefundable 
evaluation fee of thirty dollars (S30.00) for each request for 
evaluation of a course or real estate education activity. In 
order for requests for equivalent credit to be considered and 
credits to be entered into a licensee's continuing education 
record prior to the June 30 license expiration date, such 
requests and all supporting documents must be received by the 
Commission on or before June 10 preceding expiration of the 
licensee's current license, with the exception that requests from 
instructors desiring equivalent credit for teaching 
Commission-approved continuing education courses must be 
received by June 30. Any equivalent continuing education 
credit awarded under this Rule shall be applied first to make 
up any continuing education deficiency for the previous two 
license periods and then to satisfy the continuing education 
requirement for the current license period; however, credit for 
an unapproved course or educational activity, other than 
teaching an approved elective course, that was completed 
during a previous license period may not be applied to a 
subsequent license period. 

(b) The Commission may award continuing education 
elective credit for completion of an unapproved course which 
the Commission finds equivalent to the elective course 
component of the continuing education requirement set forth 
in Section .0300 of Subchapter 58E. Completion of an 
unapproved course may serve only to satisfy the elective 
requirement and cannot be substituted for completion of the 
mandatory update course. 

(c) Real estate education activities, other than teaching a 
Commission-approved course, which may be eligible for 



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PROPOSED RILES 



credit include, but are not limited to: developing a 
Commission-approved elective continuing education course, 
authorship of a published real estate textbook: and authorship 
of a scholarly article, on a topic acceptable for continuing 
education purposes, which has been published in a 
professional journal. The Commission may award continuing 
education elective credit for activities which the Commission 
finds equivalent to the elective course component of the 
continuing education requirement set forth in Section .0300 of 
Subchapter 58E. No activity other than teaching a 
Commission-developed mandatory update course shall be 
considered equivalent to completing the mandatory update 
course. 

(d) The Commission may award credit for teaching the 
Commission-developed mandatory update course and for 
teaching an approved elective course. Credit for teaching an 
approved elective course shall be awarded only for teaching a 
course for the first time. Credit for teaching a Commission- 
developed mandatory update course may be awarded for each 
licensing period in which the instructor teaches the course. 
The amount of credit awarded to the instructor of an approved 
continuing education course shall be the same as the amount of 
credit earned by a licensee who completes the course. 
Licensees who are instructors of continuing education courses 
approved by the Commission shall not be subject to the thirty 
dollar ($30.00) evaluation fee when applying for continuing 
education credit for teaching an approved course. No credit 
toward the continuing education requirement shall be awarded 
for teaching a real estate prelicensing course. 



TtHhtnM 



(e) No carry-over credit to a subsequcn rhrcn se perto 
be awarded for taking an unapprove d conti n uing education 



course or for 



:t i vity o t her than 



any real estate education act i vit y 
teac h ing an approved e l ective course : 

tf) (e) A licensee completing a real estate appraisal 
prelicensing. precertification or continuing education course 
approved by the North Carolina Appraisal Board may obtain 
real estate continuing education elective credit for such course 
by submitting to the Commission a written request for 
equivalent continuing education elective credit accompanied 
by a nonrefundable processing fee of twenty dollars (S20.00) 
and a copy of the certificate of course completion issued by 
the course sponsor for submission to the North Carolina 
Appraisal Board. 

Authority G.S. 93A-3(c); 93A-4A. 

SUBCHAPTER 58B - TIME SHARES 

SECTION .0100 - TIME SHARE PROJECT 
REGISTRATION 

.0101 APPLICATION FOR REGISTRATION 

(a) Every application for time share project registration 
shall be filed at the Commission's office upon a form 
prescribed by the Commission. Every such application shall 
contain or have appended thereto: 



( 1 ) information concerning the developer's title or right 
to use the real property on which the project is 
located, including a title opinion provided by an 
independent attorney performed within 30 days 
preceding the date of application; 

(2) information concerning owners of time shares at the 
project other than the developer: 

(3) a description of the improvements and amenities 
located at the project, including a description of the 
number and type of time share units; 

(4) a description of the time share estate to be sold or 
conveyed to purchasers: 

(5) information concerning the developer and his or her 
financial ability to develop the pr o j ect, proiect 
(including the developer's most recent audited 
financial statement, any loan commitments for 
completion of the proposed time share project, a 
projected budget lor the construction, marketing and 
operation ol the time share project until control by 
purchasers is asserted, and details of any source of 
funding for the time share project other than 
consumer sales proceeds), and information 
concerning the marketing and managing entities and 
their relationship to the developer: 

(6) the developer's name and address, past real estate 
development experience and such other information 
necessary to determine the moral character of those 
selling and managing the project; 

(7) copies of all documents to be distributed to time 
share purchasers at the point of sale or immediately 
thereafter; and 

(8) such information as may be required by G.S. 
93A-52. 

The form shall also describe the standards for its proper 
completion and submission. 

(b) In accordance with G.S. 93A-52. an application for time 
share registration shall be considered to be properly completed 
when it is wholly and accurately filled out and when all 
required documents are appended to it and appear to be in 
compliance with the provisions of the Time Share Act. and. 
where the project is a condominium, the Condominium Act or 
Unit Ownership Act. 

(c) An entity which owns time shares at a time share project 
where there are one or more existing registered developers 
may also apply to the Commission for registration of its time 
shares, provided that the entity does not control a registered 
developer, is not controlled by a registered developer, and is 
not in common control of the project with a registered 
developer. 

Authority G.S. 47A; 47C; 93A-51; 93A-52(a). 

.0102 REGISTRATION FEE 

(a) Every application lor time share project registration 
must be accompanied by a certified check made payable to the 
North Carolina Real Estate Com m iss i o n -nT ihe amou n t of one 



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PROPOSED RULES 



th ousa n d dollars ($1,000). Commission. For the initial 
registration of any time share project, or for a subsequent 
registration of a time share project by a developer proposing to 
sell or develop time shares equivalent to at least 20 per cent of 
the original time share project, the fee is one thousand dollars 
($1,000). For a subsequent registration of a previously or 
presently registered time share project by a developer 
proposing to sell or develop time shares equivalent to less than 
20 per cent of the original time share project, the fee is eight 
hundred dollars ($800.00). For an initial or subsequent time 
share project consisting of a single family dwelling unit or a 
single dwelling unit in a multiple dwelling unit property and in 
which 10 or less time shares will be or have been created, the 
fee is six hundred dollars ($600.00). For any time share 
registration by a homeowner association for the purpose of re- 
selling time shares in its own project which it has acquired in 
satisfaction of unpaid assessments by prior owners, the fee is 
four hundred dollars ($400.00). Applications for reg i stration 
n ot accompanied by the appropriate fee shall n ot be considered 
by the Commission. — In the event a pro p e r ly completed 
application filed w i t h the Commission is denied f or any 
r eason, the a m ount of two rmndred fifty dolla r s ($250.00) shall 
be retai n ed by the Commission from the applicatio n fee and 
the balance refunded to the applica n t developer. 

(b) Applications for registration not accompanied by the 
appropriate fee shall not he considered by the Commission. 

(c) In the event a properly completed application filed with 
the Commission is denied for any reason, or if an incomplete 
application is denied by the Commission or abandoned by the 
developer prior to a final decision by the Commission, the 
amount of two hundred fifty dollars ($250.00) shall be 
retained by the Commission from the application fee and the 
balance refunded to the applicant developer. 

Authority G.S. 93A-51; 93A-52. 

SUBCHAPTER 58C - REAL ESTATE PRE-LICENSING 
EDUCATION 



.0105 

The 
school 

(1) 



(2) 



(3; 



WITHDRAWAL OR DENIAL OF APPROVAL 

Commission may deny or withdraw approval of any 

upon finding that such school has: 

refused or failed to comply with any of the 

provisions of Sections .0100 or .0300 of this 

Subchapter; 

obtained or used, or attempted to obtain or use, in 

any manner or form. North Carolina real estate 

licensing examination questions; or 

compiled a licensing examination performance 

record for any annual reporting period first-time 

examination candidates which is either below 5f) 70 

percent passing o r 15 o r mo r e percentage poin ts 



be low the 



r d of a ll — first-time 



peiloii 'i iance — recorc 
exam i nation candidates, for the previous annual 
reporting period. 



.0106 PROGRAM CHANGES 

Approved schools must obtain advance approval from the 
Commission for any changes to be made with respect to 



program — st r uctu r ing, — cou r se — con t ent, — cou r se — completion 
standards, instructors, textbooks or locations where courses 
are to be conducted. Requests for approval of such changes 
must be in writing. 

Authority G.S. 93A-4(a),(d). 

.0107 USE OF EXAMINATION PERFORMANCE 
DATA 

An approved school may — utilize — for — adve r tising — or 
promotional — purposes utilizing licensing examination 
performance data provided to the school by the Commiss i on, 



:hool for 



Authority G.S. 93A-4(a).(d). 



provided th at any disc l osure of such data by the school 

advertising or promotional purposes must be accurate and 
rrrtrst: assure that the data is accurate and that the data: 

( 1 ) be is limited to the annual examination performance 
data for the particular school and for all examination 
candidates in the state; 

(2) include the type of exa mi natio n , includes the time 
period covered, the number of first-time candidates 
examined, and either the number or percentage of 
first-time candidates passing the examination: and 

<-3l state that the disclosed data w as p r ovided by t h e 

Commission; and 
ffi (3) be is presented in a manner that is not misleading. 

Authority G.S. 93A-4(a),(d). 

.0108 STUDENT EVALUATIONS OF INSTRUCTOR 
PERFORMANCE 

Schools shall obtain and submit, at the request of the 
Commission, student evaluations of a course and instructor. 
The evaluations shall be completed by students on a form 
prescribed by the Commission and submitted by the school 
administrator within J_5 days a iter completion of the course. 

Authority G.S. 93A-4(a),(d). 

SECTION .0200 - PRIVATE REAL ESTATE SCHOOLS 

.0207 FACILITIES AND EQUIPMENT 

(a) The applicant for a license to operate a private real 
estate school shall either own the school facilities or possess a 
lease or other agreement for the use of facilities for school 
purposes which will assure the availability of adequate 
facilities until the next June 30 following license issuance or 
renewal. If facilities are to be leased or rented, the applicant 
need not execute such lease or other agreement until 
notification is received that the school application has been 
approved; however, such lease or agreement must be executed 
and a copy provided to the Commission prior to issuance of a 
license. 

(b) All school facilities and equipment shall have been 



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PROPOSED RULES 



found by appropriate l ocal building, heal t h and fir e inspectors Authority G.S. 93A-4{a),(d); 93A-33. 

to be in compliance with all applicable local, state and federal 

laws and regulations regarding saf e ty safetN . health, and 

sanitation. Schools shall furnish the Commission with 

inspection reports from appropriate local building, health and 

fire inspectors upon request of the Commission. 

(c) Classrooms shall be of sufficient size to accommodate 
comfortably all students enrolled in a course, shall have 
adequate light, heat, cooling and ventilation and shall be free 
of distractions which would disrupt class sessions. 

(d) Classrooms shall contain, at a minimum, a c h alkboa r d 
an overhead projector and student desks or worktables 
sufficient to accommodate all students enrolled in a course. 



Authority G.S. 93A-4(a).(d); 93A-33. 

.0213 PERFORMANCE BOND 

An applicant for a private real estate school license shall 
execute, on a form prescribed by the Commission, a bond as 
required by G.S. 93A-36, and shall submit with the license 
application a copy of said executed bond. Upon approval of 
the bond by the Commission, the applicant shall file the bond 
with the clerk of superior court of the county in which the 
school or branch thereof school's administrative office is 
located, and shall provide evidence of such filing to the 
Commission prior to issuance of a license. 

Authority G.S. 93A-4(a),(d); 93A-33. 

.0214 ADVERTISING AND RECRUITMENT 
ACTIVITIES 

(a) A school may utilize for advertising or promotional 
purposes promoting licensing examination performance data 
provided t o the school by the Commission, provided that any 
disclosu r e of such data by the school must be assure that the 
data is accurate and must: that the data: 

( 1 ) be is limited to the annual examination performance 
data for the particular school and for all examination 
candidates in the state; 

(2) include the type of examination, includes the time 
period covered, the number of first-time candidates 
examined, and either the number or percentage of 
first-time candidates passing the examination: and 

(~3i s t ate that t he disclosed data was provided by the 

Com mi ssion; and 
t4i £3} be is presented in a manner that is not misleading. 

(b) Schools shall not make or publish, by way of 
advertising or otherwise, any false or misleading statement 
regarding employment opportunities which may be available 
as a result of successful completion of a course oflered by that 
school or acquisition of a real estate license. 

(c) Schools shall not use endorsements or recommendations 
of any person or organization, by way of advertising or 
otherwise, unless such person or organization has consented in 
writing to the use of the endorsement or recommendation and 
is not compensated for such use. 



.0217 LICENSE RENEWAL AND FEES 

(a) Private real estate school licenses expire on the next 
June 30 following the date of issuance. In order to assure 
continuous licensure, applications for license renewal, 
accompanied by the prescribed renewal fee. should be filed 
with the Commission annually on or before June 1. 
Incomplete renewal applications not completed by July 1 shall 
be treated as original license applications. 

(b) The license renewal fee shall be one hundred dollars 
($100.00) for each previously licensed school location and 
twenty dollars ($20.00) for each real estate pre-licensing 
course a n d ap pr a i sal p r e-lice n s i ng and pre-certification co ur s e 
for which the applicant requests continuing approval. The fee 
shall be paid by check payable to the North Carolina Real 
Estate Commission and is nonrefundable. If the applicant 
requests approval of additional courses for which approval 
was not granted in the previous year, the fee for such 
additional courses is forty dollars ($40.00) per course. 

Authority G.S. 93A-4(a)Jd); 93A-33; 93A-34(b); 93A-35(b). 

.0218 LICENSING EXAM CONFIDENTIALITY: 
SCHOOL PERFORM./LICENSING 

(a) Schools shall not obtain or use. or attempt to obtain or 
use, in any manner or form, North Carolina real estate 
licensing examination questions. 

(b) Schools must maintain a satisfactory performance 
record on the real estate licensing exam i nations, examination. 
A school performance record that is either below 50 p er cent 
passi n g — or — h5 — or — more — pe r centag e — points — b elow — the 
perfo r ma n c e r eco r d of all f ir st-time exami n atio n candidates 
du ring any annual reporting p eri od for first-time examination 
candidates which is below 70 percent passing tor the previous 
annual reporting period shall be considered unsatisfactory 
under this Rule. 

Authority G.S. 93A-4(a),(d); 93A-33. 

.0220 STUDENT EVALUATIONS OF INSTRUCTOR 
PERFORMANCE 

Schools shall obtain and submit, at the request of the 
Commission, student evaluations of a course and instructor. 
The evaluations shall be completed bv students on a form 
prescribed bv the Commission and submitted by the school 
administrator within 15 davs alter completion of the course. 

Authority G.S. 93A-4(a),(d); 93A-33. 

SECTION .0300 - PRE-LICENSING COURSES 

.0302 PROGRAM STRUCTURING 

Real estate pre-licensing education programs rrttrst — be 
structured as prescribed in G.S. 93A-4(a>. shall include a 
salesperson course consisting of at least 67 classroom hours of 



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PROPOSED RULES 



instruction and a broker course consisting of at least 60 
classroom hours of instruction. Completion of the salesma n 
salesperson course within the previous fire three years or 
possession of a current s alesman salesperson license must be a 
prerequisite for enrollment in the advanced broker cou r ses. 
course. 

Authority G.S. 93A-4(a),(d); 93A-33. 

.0304 COURSE COMPLETION STANDARDS 

(a) Academic standards for course completion must 
reasonably assure that students receiving a passing grade 
possess adequate knowledge and understanding of the subject 
areas prescribed for the course. A student's grade must be 
based solely on his or her performance on examinations and 
on graded homework and classwork assignments. In any 
c ou r se for which coll e g e credit or continuing education units 
(CEUs) m ay be awa r ded, the pass i ng g r ade fo r the purpose of 
certifying course completio n to the Commission must be the 
same as that grade which is considered passing for the purpose 
of awa r di n g coll e ge or CEU credit. 

(b) Course completion requirements must include a 
comprehensive final course examination which covers all 
prescribed subject areas and which accounts for at least 50 
percent of a student's grade for the course. Final course 
examinations are subject to review and approval by the 
Commission. Take-home or open-book final course 
examinations are prohibited. Schools may. within 90 days of 
the course ending date, allow a student one opportunity to 
make up any missed course examination or to retake any failed 
course examination without repeating the course, course; 
however, any makeup examination must be comparable to the 
initial examination with regard to the number of questions and 
overall difficulty, and at least 75 percent of the questions m the 
makeup examination must be different from those used on the 
initial examination . 

(c) The minimum attendance required for satisfactory 
course completion is 80 percent of all scheduled classroom 
hours for the course. 

Authority G.S. 93A-4(a).(d). 

.0305 COURSE SCHEDULING 

(a) All courses must have fixed beginning and ending dates, 
and schools may not utilize a scheduling system that allows 
students to enroll late for a course and then complete their 
course work in a subsequently scheduled course. Late 
enrollment is permitted only if the enrolling student can satisfy 
the minimum attendance requirement set forth in Rule 
.0304(c) of this Section. 

(b) Real estate pre-licensing courses may not have class 
meetings that exceed six classroom hours in any given day and 
+8 21 classroom hours in any given seven-day period. 
However, a school that conducts courses with class meetings 
that do not exceed a total of J_5 classroom hours in any seven- 
dav period may conduct individual class meetings of up to 7 l A 
hours in any given day. If a school des ir es to conduct a cou r se 



w i th class me e t in gs that will be held on co n secutive days a n d 
the cou r se will also in volve more than four classroom hours on 



a n y of the consecutive davs or more than 12 classroom houi s 



i n a n y given seven-day per i od, the school must obtain advance 



approval of the course schedule from the Commission. — To 
o b tai n app r oval of such a proposed course schedule, the school 



must demo n st r ate to the satisfaction of the Commission tha t 
th e p r o p os e d s c hedule provides suffic i ent time for the required 



instruct i on to be provided by a comb ina tion of classroom 
instruction — and — out-of-class — textboo k — reading — and — othe r 



assignments. To determine — the ac c eptability of such a 

pr o p osed cou r se sch e dule, the Co m mission sha l l conside r the 



inst r uctio n that is r equi r ed for the course unde r Commission 
r ules, the total number of scheduled c l assroom hours fo r the 



course, the length and frequency of proposed ind i vidual class 
meetings and the amount of out-of-class study time available 
t o stud e nts. 

(c) A classroom hour consists of 50 minutes of classroom 
instruction and ten minutes of break time. For any class 
meeting that exceeds 50 minutes in duration, breaks at the rate 
of ten minutes per hour must be scheduled and taken at 
reasonable times. 

Authority G.S. 93A-4(a),(d). 

.0306 TEXTBOOKS 

(a) Each course must utilize a textbook or course materials 
which are approved by the Commission as well as any 
additional instructional materials which may be prescribed by 
the Commission for such course. Instructors shall make 
appropriate out-of-class reading assignments in the selected 
textbook and any additional prescribed instructional materials 
and shall actively encourage students to perform such reading 
assignments. 

(b) A request for Commission approval of a proposed 
textbook or similar course materials must be submitted in 
writing to the Commission and accompanied by two copies of 
the proposed textbook or course materials. If the request is for 
approval of a new edition of a previously approved textbook, 
the request must also include a detailed list of al] significant 
changes to the o|d edition and such list of changes should be 
relcrenced to specific pages i_n the manuscript for the new 
edition. Approval of a textbook or other course materials 
applies only to the edition reviewed by the Commission. 
Additional approval is required for each subsequent edition. 
Approval is for an indefinite period; however, such approval 
may be terminated by the Commission at any time upon 
determining that the approved edition no longer complies with 



the criteria for approval. The criteria for approval shall be as 

follows: 

( 1 ) The textbook or materials must provide accurate, 
current and complete coverage of the subject matter 
required by the Commission for the course for 
which approval of the textbook or materials is 
sought, including coverage of unique North Carolina 
real estate related laws, rules and practices that are 
integrated into the basic coverage. 



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(2) The information provided must he lotiieallv 
organized and grammatically correct. 

(3) The nature and depth of subject matter coverage 
must he consistent with the competency and 
instructional levels prescribed by the Commission 
for the course lor which approval is sought. 

Authority G.S. 93A-4(a),(d); 93A-33; 93 A- 75(a). 

.0307 REAL ESTATE INSTRUCTORS 

(a) Except as indicated in Paragraph (b) of this Rule, all real 
estate pre-licensing courses must be taught by instructors who 



(b) Guest lecturers who do not possess the qualifications 
stated in Pa r ag rap h (a) of this Rule .0603 of this Subchapter 
may be utilized to teach collectively up to one-half one-third 
of any course, provided that no one individual guest lecturer 
may teach more than o n e-thi r d one-fifth of any course, and 
provided further that each guest lecturer possesses experience 
directly related to the particular subject area he the guest 
lecturer is teaching. 

(c) Instructors shall conduct courses in acco r da n c e with the 
Comm i ssion's rules a n d - cou r se svllabi. Instructors shall 



conduct thems 



r ofcssio n al a n d courteous mann er 



iselves i n a pro l cssi < 
when perform i ng their in s tr uct i o n al dut i es and shall conduct 
poss e ss good moral character and e it he r the m i nimum real the ir c l asses in a manner that d em o n s tr ates a mas t ery o l the 
estate education and expe rien ce qua l ifications listed in this 
Rule for each course o r oth er qual i fica t ions t h at are found by 
t he Com m ission to h e equ i valent to those lis te d, have been 
approved by the Commission m accordance with Section 
.0600 of this Subchapter. These qual i ficat i o n r eq uiremen ts 



m ust be met on a continuing basis. Fo r a pre vious l y ap pr oved 
i n st r ucto r , ex p e ri ence i n teachi n g a No r th Ca r oli n a real estate 
pre -l i c en si n g cou r se may be substitut e d fo r any r equ ir ed 
e xp eri enc e i n re al estate br ok er age, r eal estate law p r act i c e , o r 



mortgag e le n ding w hen a sc hool i s seek in g continu e d appnn 
ofthc i n structor to teac h such cou r se. 



nl 



rfl- 



Fundame n tals of Real Estat e . — A cu rre nt No r th 
Carolina — salesma n — or — br oke r — l i cense — a — cu rr e n t 



continuing educat i o n r eco r d. 120 cla 



rot 



I J() classroo m hou r s 
reai — estate — e ducat i o n — e xc l ud in g — co m pa n y — or 



ft 



anchise in-ser\ic e sal e s t r a i n in g, a n d two years' 
full-time general re al esta t e b r oke r age e x perien c e 
within the p r ev i ous f i ve yea r s. 



(2) Real Estate Lav 



to p r ac ti ce law i n North 



:s t ate Law. A l i ce n se 
Caro l ina and e i ther expe ri e n c e i n c l o si ng at least ten 
real estate sales tra ns acti on s with in the prev i ous 
three years o r complet i on of a r eal estate practice 
course in law school. 

f3i Real Estate Financ e . O n e yea r full- t ime experience 

within the prev i ous t h r ee yea r s as a mo r tgage loan 



f ir st m o r tga ge loans, or two 



officer specializing in li t 

years' full-time exper i enc e w i th i n th e p r ev i ous three 



yea r s as a g e neral lo an ot t ic e r w i th an inst i tutio n 
w h ic h m ake s a s ubstantial nu m b er of fi r st mo r tg a ge 



loa n s, o r a cur r ent No r th Ci 



a r ol in a Br oke r l i ce n s e a 
cu rr ent conti n ui n g educat i o n reco r d, and a m in i mu m 
of f i v e y e a r s' full-time g en e r a l re al esta t e b r oke r age 
expe r ience within the p r evious s e ven y ear s. 



Real Estate B r ok e 



i t No r th 



< er age o p erations: a current wort 
Carolina - broker — licens e . — a — curren t — continuing 
educat i on record. 120 class r oom h ours of real estate 
education — excluding — co mp a n y — or — f r anc h ise 



in-service sa l es t r aini n g . -anti~thn 



f ul l -t i me 



rce y e a r s 
general r eai estate b r oke r age exp e ri e nc e with i n t h e 



previous five years i n cluding at l e ast one yea r as 
broker-ow n er : — des i gnate d — broker-i rr- c h a r ge — or 
managing br ok er-of-a mult i -ag e nt real estate fi r m or 
office. 



ir classes i n a manner that d em o n s tr; 
followi n g ba s ic teaching skil l s. 

Hi The ab i lity to commun i cate e ff e ct i vely through 

spee c h, i ncluding the abil it y to s p eak c l ea r ly at an 
approp r iate rale of speed and w i t h a p p r op r iate voice 
in flection, grammar and voca b ula r y. 

r2i The a b ility to p r ese n t an e ffec ti v e v i sual i mage to a 

c l ass, in cludi n g appropriate appearance a n d phys i cal 
ma nn e r isms. 

rough; 
irtd — unde r standable 



r3i The ability to pres en t inst r uction in a the 



accurate. — logical. — orderly 

manner. — to — utilize — i llust r ativ e — e xa mp l es — as 

appropriate. — and — to — respond — app r opriately — to 

quest i ons from stude n ts. 
r=ri The abil i ty to effectively utilize var i ed i nst r uct i onal 

tech n iques in addit i on to - s tr a i ght lectu r e, such as 

class discussion, role playing o r othe r tech n iques. 
f5i The ability to effectively ut ili z e in s tr uctional a i ds. 

such as the overhead p r oj e cto r , to e nh a n ce lea r n in g. 



tfr) The ability to maintain a n app r o pr iate lea rn i n g 

environment and e ff e ct i ve co n t r o l of a class. 

fft The abili t y to interact with adult stude n ts in a 

pos i tive manner that e ncou r ages students to lear n , 
that demons tr a te s a n u n de r sta n d i ng of va r ied student 
backgrounds, that avo i ds offend in g the se n s i b i l i ties 
of students, a n d that avo i ds pe r sonal c ri t i cism of a n y 



students. . 
other person, age n cy o r o r ga ni zatio n . 



(d) Upon request of th e Commiss i o n , a sc h ool m ust sub mi t 
to- the Commission a videotape! s) de pi ct in g an approved 



t e ach in g portions of 



instructor designated by the Comm i ss i o n teach in g port 
an approved course specifi e d by the Cominiss i on r 



^Fhe 



videota p e) si must hi 



urn nav e n een ma tte within rz months ot the 
date of su b mission, must be in VHS format, must include a 
la b el ide n tify i ng t h e instructo r and dat e s of the videotaped 
instruction, a n d m ust hav e v i sual and sou n d qua l ity sufficient 
to allow viewe r s to clea rl y see a n d he ar t he instr uc t o r . 

Authority G.S. 93A-4(a),(d); 93A-33; 93A-34. 

.0310 COURSE RECORDS 

(a) Schools must retain on file for free three years copies of 
all grade and attendance records and must make such records 
available to the Commission upon request. 

(b) Schools must retain on file for two years a master copy 



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PROPOSED RULES 



of each final course examination, and such file copy shall 
indicate the answer key, course title, course dates and name of 
instructor. Examination file copies shall be made available to 
the Commission upon request. 

Authority G.S. 93A-4(a),(d); 93A-33; 93A-75(a). 

.0312 EXCEPTION FOR PERSONS WITH 
DISABILITIES 

Schools may deviate from Commission rules concerning 
student attendance, course scheduling, instructional methods, 
instructional materials, facilities or similar matters as may be 
necessary in order for a school to comply with the Americans 
With Disabilities Act or other laws requiring such schools to 
accommodate persons with disabilities; provided that no 
deviations from Commission rules are permitted by this rule 
with regard to program structuring, course content, academic 
course completion standards, or instructors. When considering 
a request for special accommodation under the Americans 
With Disabilities Act or other similar laws, a school shall 
make a reasonable inquiry to determine that the person making 
the request is a qualified individual with a disability and that 
the requested accommodation is appropriate for the particular 
disability. A school providing a special accommodation for a 
student with a disability that requires the school to deviate 
from Commission rules shall notify the Commission in writing 
of the accommodation within ten days of the start of the course 
in which the student is en r oll e d, enrolled or. if the 
accommodation is requested after the start of the course, 
within ten days of the date the accommodation is first 
provided. 

Authority G.S. 93A-3(c); 93A-34. 

SECTION .0600 - PRE-LICENSING INSTRUCTORS 

.0601 PURPOSE AND APPLICABILITY 

This Section prescribes the criteria and procedures for 
Commission approval of instructors of real estate pre-licensing 
courses and also prescribes perlormance standards lor 
approved pre-licensing instructors. 

Authority G.S. 93A-4(a),(d); 93A-33; 93A-34. 

.0602 NATURE AND SCOPE OF INSTRUCTOR 
APPROVAL 

Approval of real estate pre-licensing course instructors shall 
be accomplished separate from the approval and licensure of 
schools to conduct real estate pre-licensing courses. Approval 
of a pre-licensing course instructor authorizes the instructor to 
teach both salesperson and broker pre-licensing courses at 
schools approved or licensed by the Commission to conduct 
such courses. An approved pre-licensing course instructor 
shall not independently conduct a pre-licensing course. An 
instructor must obtain written approval from the Commission 
prior to teaching a pre-licensing course for any school and 



prior to representing to any school or other party that the 
instructor is approved or may be approved as a pre-licensing 
course instructor. 

Authority G.S. 93A-4(a),(d); 93A-33; 93A-34. 

.0603 APPLICATION AND CRITERIA FOR 
ORIGINAL APPROVAL 

(a) An individual seeking original approval as a pre- 
licensing course instructor must make application on a form 
prescribed by the Commission. An applicant who is not a 
resident of North Carolina shall also file with the application a 
consent to service of process and pleadings. No application 
fee is required. All required information regarding the 
applicant's qualifications must he submitted. 

(h) An instructor applicant shall demonstrate that he or she 
possesses the following qualifications or other qualifications 
found by the Commission to be equivalent to the following 
qualifications; A current North Carolina real estate broker 
license; three years active full-time experience m general real 
estate brokerage, including substantial experience in real estate 
sales, within the previous seven years; 120 classroom hours of 
real estate education excluding company or franchise 
in-service sales training; and 60 semester hours of college- 
level education at an institution accredited by a nationally 
recognized college accrediting body . 

(c) In addition to the qualification requirements stated in 
Paragraph (h) of this Rule, an applicant shall also demonstrate 
completion of an instructor seminar prescribed by the 
Commission and shall submit a two-hour videotape which 
depicts the applicant teaching a real estate pre-licensing course 
topic and which demonstrates that the applicant possesses the 
basic teaching skills described in Rule 0604 of this Section. 
The videotape must comply with the requirements specified in 
Rule .0605(c) of this Section. An applicant who is a 
Commission-appro\ ed continuing education update course 
instructor under Subchapter E, Section .0200 of this Chapter or 
who holds the Distinguished Real Estate Instructor (DREI) 
designation granted by the Real Estate Educators Association 
or an equivalent real estate instructor certification shall be 
exempt from the requirement to demonstrate satisfactory 
teaching skills by submission of a videotape. An applicant 
who is qualified under Paragraph (h) of this Rule hut who has 
not satisfied these additional requirements at the time of 
application shall be approved and granted a six-month grace 
period to complete these requirements. The approval of any 
instructor who is granted such six-month period to complete 
the requirements shall automatically expire on the last day of 
the period if the instructor has failed to fully satisfy his or her 
qualification deficiencies and the period has not been extended 
bv the Commission. The Commission may in its discretion 
extend the six-month period for up to three additional months 
when the Commission requires more than 30 davs to review 
and act on a submitted videotape, when the expiration date of 
the period occurs during a course being taught by the 
instructor, or when the Commission determines that such 
extension is otherwise warranted by exceptional 



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PROPOSED RULES 



circumstances. An individual applying for instructor approval 
shall be allowed the authorized six-month period to satisfy the 
requirements stated in this Paragraph only once. 

Authority G.S. 93A-4(a),(d); 93A-33; 93A-34. 



.0604 INSTRUCTOR PERFORMANCE 

(a) Instructors shall conduct courses in accordance with the 
Commission's rules and course syllabi. Instructors shall 
conduct themselves in a professional and courteous manner 
when performing their instructional duties and shall conduct 
their classes in a manner that demonstrates a thorough 



instructor teaching portions of a pre-licensing course specified 
by the Commission and which demonstrates that the instructor 
possesses the basic teaching skills described in Rule .0604 of 
this Section. 

(c) Any videotape submitted to the Commission in 
connection with an instructor application or m response to a 
request from the Commission must be approximately two 
hours in length and must depict the instructor teaching either 
one continuous block of instruction on a single topic or two 
separate one-hour blocks of instruction on different topics. 
The videotape must have been made within J_2 months of the 
date of submission, must be in VHS format, must be unedited. 



knowledge of the subiect matter being taught and mastery of must include a label identifying the instructor and dates of the 



the following basic leaching skills: 

( 1 ) The ability to communicate effectively through 
speech, including the ability to speak clearly at an 
appropriate rate of speed and with appropriate voice 
inflection, grammar and vocabulary. 

(2) The ability to present an effective visual image to a 
class, including appropriate appearance and physical 
mannerisms. 

(3) The ability to present instruction in a thorough, 
accurate, logical, orderly and understandable 
manner, to utilize illustrative examples as 
appropriate, and to respond appropriately to 
questions from students. 

(4) The ability to effectively utilize varied instructional 
techniques iri addition to straight lecture, such as 
class discussion, role playing or other techniques. 

(5) The ability to effectively utilize instructional aids, 
such as an overhead projector, to enhance learning. 

(6) The ability to maintain an appropriate learning 
environment and effective control of a class. 

(7) The ability to interact with adult students in a 
positive manner that encourages students to learn. 
that demonstrates an understanding of varied student 
backgrounds, that avoids offending the sensibilities 
of students, and that avoids personal criticism of any 
other person, agency or organization. 

(b) Instructors shall utilize pre-licensing course 
examinations that will assure compliance with the course 
completion standards prescribed in Rule .0304 of thus Section. 
Instructors shall take appropriate steps to protect the security 
of course examinations and shall not allow students to retain 
copies of final course examinations. 

AuthorinG.S. 93A-4(a),(d); 93A-33; 93A-34. 



videotaped instruction, and must have visual and sound quality 
sufficient to allow viewers to clearly see and hear the 
instructor. 



Authority G.S. 93A-4(a),(d); 93A-33; 93A-34. 



.0606 ANNUAL BROKER COURSE REPORT 

Each pre-licensing instructor shall submit to 



the 



Commission annually not later than July 15 a report, on a form 
prescribed by the Commission, listing for the previous July 1 - 
June 30 period each broker pre-licensing course taught by the 
instructor and providing student enrollment and completion 
information for each course and for the annual period. This 
report shall be submitted even if an instructor did not teach 
any broker pre-licensing course during the previous annual 
reporting period. 

Authority G.S. 93A-4(a),(d); 93A-33; 93A-34. 

.0607 EXPIRATION AND RENEWAL OF 
APPROVAL 

Commission approval of pre-licensing instructors shall 
expire on the third December 31 following issuance of 
approval, except as otherwise provided m Rule .0603(c) of this 
Section. In order to assure continuous approval, approved 
instructors must tile applications for renewal of approval on a 
form prescribed by the Commission on or before December 1 
immediately preceding expiration of their a pproval. To 
qualify for renewal of approval, instructors must demonstrate 
that they continue to satisfy the criteria for original approval 
set forth m Rule .0603(b) of thus Section and that thev have 
attended, during the immediate preceding approval perio d, at 
least three separate real estate instructor educational programs 
of at least six hours each. 



.0605 REQUEST FOR EXAMINATIONS AND 
VIDEOTAPE 

(a) Upon request of the Commission, an instructor shall 
submit to the Commission copies of final course examinations, 
with answer keys, used in pre-licensing courses taught by the 
instructor. 

(b) Upon request of the Commission, an instructor must 
submit to the Commission a videotape which depicts the 



Authority G.S. 93A-4(a),(d); 93A-33; 93A-34. 

.0608 DENIAL OR WITHDRAWAL OF APPROVAL 

(a) The Commission may denv or withdraw approval of any 
pre-licensing course instructor upon finding that: 

( 1 ) The instructor or instructor applicant has failed to 
meet the criteria for approval described in Rule 
.0603 of this Section or the criteria for renewal of 



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793 



PROPOSED RULES 



(2) 



0} 



(4) 



fa 



L^J 



approval described in Rule .0607 of this Section, or 

has refused or failed to comply with any other 

provisions of this Subchapter; 

the instructor has made any false statements or 

presented any false information m connection with 

an application for approval or renewal of approval; 

the instructor has failed to submit any report, course 

examination or videotape the instructor is required 

to submit to the Commission; 

the instructor has provided false or incorrect 

information in connection with any report the 

instructor or a pre-licensing school is required to 

submit to the Commission; 

the instructor has failed to demonstrate, during the 

teaching of pre-licensing courses, those effective 



teaching skills described m Rule 
Section; 



.0604 of this 



the instructor has compiled a licensing examination 
performance record lor first-time examination 
candidates which is below 70 percent passing for the 
previous annual reporting period; or 
(7) the instructor has been disciplined by the 
Commission or any other occupational licensing 
agency in North Carolina or another jurisdiction, 
(b) If a licensee who is an approved pre-licensing course 
i nstructor engages i_n an\ dishonest, fraudulent or improper 
c onduct jji connection with the licensee's activities as an 
i nstructor, the licensee shall be subject to disciplinary action 
p ursuant to G.S. 93A-6. 

Authority G.S. 93A-4(a),(d); 93A-33; 93A-34. 

SUBCHAPTER 58E - REAL ESTATE CONTINUING 
EDUCATION 

SECTION .0100 - UPDATE COURSE 

.0i02 UPDATE COURSE COMPONENT 

(a) To renew a license on active status, a real estate broker 
or salesman salesperson must complete, within one year 
preceding license expiration and in addition to satisfying the 
continuing education elective requirement described in Section 
.0302 of this Subchapter, a Commission-developed update 
course consisting of four classroom hours of instruction. 

(b) The Commission shall develop annually an update 
course which shall be conducted by sponsors approved by the 
Commission under this Subchapter. The subject matter of this 
course shall be determined by the Commission, which shall 
produce instructor and student materials for use by course 
sponsors. The Commission shall prepare a completely new 
course for each one-year period beginning July 1 and ending 
the next June 30. Sponsors must acquire the Commission- 
developed course materials and utilize such materials to 
conduct the update course. The course must be conducted 
exactly as prescribed by the rules in this Subchapter and the 
course materials developed by the Commission. All course 



materials that are developed by the Commission for use in an 
update course and that are subject to the protection of federal 
copyright laws are the property of the Commission. Violation 
of the Commission's copyright with regard to these materials 
shall be grounds for disciplinary action. Sponsors must 
provide licensees participating in their classes a copy of the 
student materials developed by the Commission. With 
advance approval from the Commission, course sponsors and 
instructors may make modifications to the update course when 
the update course is being promoted to and conducted for a 
group of licensees that speciali/.e m a particular area of real 
estate brokerage, provided that the modifications relate to the 
same general subject matter as is addressed m the prescribed 
update course and the course as modified achieves the same 
educational objectives as the unmodified course. 

(c) Approval of a sponsor to conduct an update course 
authorizes the sponsor to conduct the update course using an 
instructor who has been approved by the Commission as an 
update course instructor under Section .0200 of this 
Subchapter. The sponsor may conduct the update course at 
any location as frequently as is desired during the approval 
period, provided that no courses may be conducted between 
June 1 1 and June 30 of any approval period. 

Authority G.S. 93A-3(c); 93A-4A. 

SECTION .0200 - UPDATE COURSE INSTRUCTORS 

.0202 NATURE AND SCOPE OF APPROVAL 

Approval of update course instructors shall be accomplished 
on a cale n da r year basis separate from the approval of update 
course sponsors. Approval of an update course instructor 
authorizes the instructor to teach the update course for any 
approved update course sponsor; however, an approved update 
course instructor may not independently conduct an update 
course unless the instructor has also obtained approval as an 
update course sponsor. An instructor must obtain written 
approval from the Commission prior to teaching an update 
course and prior to representing to any sponsor or other party 
that he or she is approved or may be approved as an update 
course instructor. 

Authority G.S. 93A-3(c); 93A-4A. 

.0204 RENEWAL OF APPROVAL 

Commission approval of update course instructors expires 
on the next third December 3 1 following issuance of approval. 
In order to assure continuous approval, approved instructors 
must file applications for renewal of approval on a form 
prescribed by the Commission on or before December 1 
immediately preceding expiration of their approval. 
Applicants must satisfy the criteria for original approval, with 
the exception of the requirement stated in Rule .0203td) of this 
Section, in order to renew their approval. 

Authority G.S. 93A-3(c); 93A-4A. 



794 



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November 15, 1999 



14:10 



PROPOSED RILES 



.0205 DENIAL OR WITHDRAWAL OF APPROVAL 

(a) The Commission may deny or withdraw approval of any 
update course instructor upon finding that: 

( 1 ) The instructor has made any false statements or 
presented any false information in connection with 
an application for approval or renewal of approval; 

(2) The instructor has failed to meet the criteria for 
approval described in Rule .0203 of this Section or 
has refused or failed to comply with any other 
provisions of this Subchapter: 

(3) The instructor has failed to demonstrate, during the 
teaching of update courses, those effective teaching 
skills described in Rule .0509 of this Subchapter; or 

(4) The instructor has provided false or incorrect 
information in connection with any reports a course 
sponsor is required to submit to the Commissio n . 
Commission: or 

(5) The instructor has been disciplined by the 
Commission or am other occupational licensing 
agency in North Carolina or another jurisdiction. 

(b) If a licensee who is an approved update course 
instructor engages in any dishonest, fraudulent or improper 
conduct in connection with the licensee's activities as an 
instructor, the licensee shall be subject to disciplinary action 
pursuant to G.S. 93A-6. 

Authority G.S. 93A-3(c); 93A-4A. 

SECTION .0300 - ELECTIVE COURSES 

.0304 CRITERIA FOR ELECTIVE COURSE 
APPROVAL 

(a) The following requirements must be satisfied in order to 
obtain approval of a proposed elective course: 

(1) The applicant must submit all information required 
by the Commission and pay the application fee. if 
applicable. 

(2) The applicant must satisfy the requirements of 
Section .0400 of this Subchapter relating to the 
qualifications or eligibility of course sponsors. 

(3) The subject matter of the course must satisfy the 
elective course subject matter requirements set forth 
in Rule .0305 of this Section and all information to 
be presented in the course must be current and 
accurate. 

(4) The course must involve a minimum of two four 
classroom hours of instruction on acceptable subject 
matter. A classroom hour consists of 50 minutes of 
instruction and 10 minutes of break time. 

(5) The applicant and the continuing education 
coordinator required by Rule .0405 of this 
Subchapter must be truthful, honest and of high 
integrity. In this regard, the Commission may 
consider the reputation and character of any owner, 
officer and director of any corporation, association 
or organization applying for sponsor approval. 



(6) The proposed instructor! s) for the course must 
possess the qualifications described in Rule .0306 of 
this Section. 

(7) The instructional delivery methods to be utilized in 
the course must either involve live instruction in a 
traditional classroom setting or comply with the 
requirements described in Rule .0310 of this 
Section. 

(8) The applicant must submit an instructor guide that 
includes: 

(A) a detailed course outline. 

(B) the amount of time to be devoted to each 
major topic and to breaks, 

(C) the learning objective(s) for each major topic, 
and 

(D) the instructional methods and instructional 
aids that will be utilized in the course. 

The proposed time allotments must be appropriate 
for the proposed subject matter to be taught. Unless 
the applicant can demonstrate that straight lecture is 
the most effective instructional method for the 
course, the instructor guide must provide for the use 
of an appropriate variety of instructional methods 
and instructional aids intended to enhance student 
attentiveness and learning. Examples of 
instructional methods and instructional aids that may- 
be appropriate include, but are not limited to. class 
discussion, role-playing, in-class work assignments, 
overhead transparencies and videotape. 

(9) The course must include handout materials for 
students unless the applicant can demonstrate that 
such materials are either inappropriate or 
unnecessary for the course. Such materials must be 
current, accurate, grammatically correct, logically 
organized and produced in a manner that reflects 
reasonable quality. 

(10) Either the instructor guide or the student materials 
must describe, in narrative form, the details of the 
substantive information to be presented in the 
course. The substantive information to be presented 
must be provided in sufficient detail to demonstrate 
that the information is current, accurate, complete, 
and otherwise appropriate. 

(11) If an applicant proposes to use copyrighted materials 
in the course, such materials must be used in a form 
approved by the copyright holder. If any 
copyrighted material is to be duplicated by the 
applicant for use in the course, the sponsor must 
have the specific permission of the copyright holder. 

f+2i App li cants re qu e st i ng a ppr oval of a co mp ute r -ba s ed 

instructional prog r a m n e e d not co mp ly with the 
r equireme n ts stal e d in Ite m s (8). ( 9 ) and ( 10) of th i s 
Rule: — h oweve r . — such — applica n ts — mtrst — STttrrrrrt — a 
il an t hat i n cludes a detailed cou r se 



vv n ne r r mtrrsc ptnn that Tncttrocs -a 

outl in cvthc m in i m u m a m ou n t of ti me requ i red to r a 

typical l icense e to co m p l ete each lesson a n d the 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



795 



PROPOSED RULES 



en ti r e c ou r s e , and the l e arning ob j ectives ) for each 
major topic. — The minimum time prescribed for 
completion of each l esson and the entire course 
must be reasonable a n d approp r iate for th e proposed 
subject matte r to be taught. — Such applicants must 
also submit a complete copy ol" the instructional 
pr og r a m o n the mediu m that is to be utilized and 
m ust make ava il able, at a dat e and ti me sat i sfacto r y 
to the Co m miss i on and at the spo n so r 's exp e nse, all 
hardware — and — so f twa re — n e cessa r y — for — the 
Commission to review the sub mi tted instructional 

program. The — mini malum — fn — the — instructional 

program — must be — current, — accurate. — complete, 
grammat i cally co rr ect a n d logical l y o r ga n i z ed. Th e 
in s tr uctio n al p r og r a m m ust also be p r oduced in a 
m ann er t h at reflects r e asonable qual i ty a n d must 
co m ply with the requireme nts o f Rule .03 1 of this 
Se ction and any other applicab l e ru l es. 
(b) Applicants requesting approval of distance education 

courses must also comply with the requirements described in 

Rule .0310 of this Section. 

Authority G.S. 93A-3(c); 93A-4A. 

.0310 DISTANCE EDUCATION COURSES 

The pri n cipal — i n structional — delivery — m e t hod — ut i l i zed in 
el e ct i ve c o u r ses must b e on e or mo r e of the follow in g : 

r+1 Pe r sonal teach in g b y an i n structor i n a traditio n al 

classroom setting: or 

(2) Instruction t h r ough a n in te r act i ve te l ev i s i on syste m 

o r co mp a r a b le syste m w h ich pe r mits continuous 
a ud i o — and — visual — commun i cation — between — the 
instructor and al l students a n d wh i c h p r ovides fo r 
approp r iate mon i to r ing and tech n ical sup p o r t at each 
s i te whe r e the i n structor o r students are located: or 



f3i 



It 



- b ased 



I n structio n through an interactive compute r - b asci 
instructional pr og r am wh i c h p r ov i des fo r co ntr ol of 
student p r og r ess th r ough the educat i ona l m ate r ials 
by testing to a ss ure student mastery of the subject 
m atte r at the end of each lesson, mon i to ri ng of ti me 
devoted — trr e ach — lesso n — by — the — computer — wrth 
automatic p r og r a m shutdow n aft er a n a ppr o pri ate 
per i od — of — nonact i v i ty — by — the — student. — and — a 
m on i to r ing system which assures that the student 
receivi n g co n t in u in g educatio n c re dit fo r completing 
the — program — actua ll y — p erformed — af) — the — wo r k 
required to complete th e prog r a m . 
Th e u se of passrve~o r non-i n te r active i n struct i onal delivery 
systems such as videotape, re m ote n on-i n teractive television or 
sTrnt la r syst e ms may b e e m ployed o n ly in a limited manner to 



rnharrt 



ice or supplement on e ol ll i e accepta hle inst r uctio n a l 
defrvay m e thods previous l y descri b ed i n this Rule. — No 



p o rt i on ol a couise may consist ot cor r espond en c e in st r uctio n . 
(a) As used m this Chapter, the term "distance education" 
shall be understood to refer to educational programs in which 
instruction is accomplished through the use of media whgrebj 
teacher and student are separated by distance and sometimes 



by time. An entity requesting approval of a distance 
education course must, in addition to satisfying al] other 
requirements for elective course approval specified jn this 
Section, demonstrate that the proposed distance education 
course satisfies the following criteria: 

( 1 ) The course shall be designed to assure that students 
actively participate in the instructional process while 
completing the course hv utilizing techniques that 
require substantial student interaction with the 
instructor, other students or a computer program. 



ill 



(2) 



m 



The course design must not permit students to 
merely sit passively and observe instruction or read 
instructional materials. 

A course that does not provide the opportunity for 
continuous audio and visual communication 
between the instructor and all students during the 
course presentation shall utilize testing and remedial 
processes appropriate to assure student mastery of 
the subject material. 

A course that involves students completing the 
course on a self-paced study basis shall be designed 
so that the time required for a student of average 
ability to complete the course will be at least four 
hours , and the sponsor shall utilize a system that 
assures that students have actually performed all 
tasks designed to assure student participation and 
mastery of the subject material. The number of 
equivalent classroom hours assigned by the course 
sponsor or developer to the course must be 
supported by appropriate studies or field tests, and 
the applicant must submit a description of such 
studies or field tests with the course application. 
(4) The proposed instructional delivery methods shall 
be appropriate to enable effective accomplishment 
of the proposed learning objectives and the scope 
and depth of the instructional materials must also be 
consistent with the proposed learning objectives. 
The sponsor shall piov ide appropriate technical 



support to enable students to satisfactorily complete 
the course. 



(6) An instructor shall be reasonably available to 
respond in a timely manner to student questions 
about the subject matter of the course and to direct 
students to additional sources of information. 

(7) The sponsor shall provide students an orientation or 
information package which contains all information 
required by the Commission to be prov ided to 
students and all necessary information about the 
course, including but not limited to information 
about course fees and relund policies, course subject 
matter and learning objectives, procedures and 
requirements for satisfactory course completion, any 
special requirements with regard to computer 
hardware and software or other equipment, and 
instructor and technical support. 

(8) ' The sponsor shall utilize procedures that provide 
reasonable assurance that the student receiving 



796 



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14:10 



PROPOSED RULES 



continuing education credit for completing the 

course actually performed all the work required to 

complete the course. For courses that involve 

independent study by students, such procedures 

must include, at a minimum, a direct contact with 

the student, initiated hy the sponsor and directed to 

the student's home or husiness, using the telephone 

or electronic mail and a signed statement hy the 

student certifying that he or she personally 

completed all course work. Signed student course 

completion statements and records of student 

contacts shall he retained hv the sponsor along with 

all other course records the sponsor is required to 

maintain. 

(b) An entity seeking approval of a computer-based 

distance education course must submit a complete copy of the 

course on the medium that is to be utilized and, if requested, 

must make available, at a date and time satisfactory to the 

Commission and at the sponsor's expense, all hardware and 

software necessary for the Commission to review the 

submitted course. In the case of an internet-based course, the 

Commission must be provided access to the course via the 

internet at a date and time satisfactory to the Commission and 

shall not be charged any fee for such access. 

Authority G.S 93A-3(c); 93A-4A. 

.0412 DENIAL OR WITHDRAWAL OF APPROVAL 

(a) The Commission may deny or withdraw approval of any 
course or course sponsor upon finding that: 

( 1 ) the course sponsor has made any false statements or 
presented any false information in connection with 
an application for course or sponsor approval or 
renewal of such approval; 

(2) the course sponsor or any official or instructor in the 
employ of the course sponsor has refused or failed 
to comply with any of the provisions of this 
Subchapter; 

(3) the course sponsor or any official or instructor in the 
employ of the course sponsor has provided false or 
incorrect information in connection with any reports 
the course sponsor is required to submit to the 
Commission; 

(4) the course sponsor has engaged in a pattern of 
consistently canceling scheduled courses; 

(5) the course sponsor has provided to the Commission 
in payment for required fees a check which was 
dishonored by a bank; 

(6) an instructor in the employ of the course sponsor 
fails to conduct approved courses in a manner that 
demonstrates possession of the teaching skills 
described in Rule .0509 of this Subchapter; or 

(7) any court of competent jurisdiction has found the 
course sponsor or any official or instructor in the 
employ of the course sponsor to have violated, in 



connection with the offering of continuing education 
courses, any applicable federal or state law or 
regulation prohibiting discrimination on the basis of 
disability, requiring places of public accommodation 
to be in compliance with prescribed accessibility 
standards, or requiring that courses related to 
licensing or certification for professional or trade 
purposes be offered in a place and manner 
accessible to persons with disabi l it i es, disabilities; 

(8) the course sponsor or any official or instructor in the 
employ of the course sponsor has been disciplined 
by the Commission or any other occupational 
licensing agency in North Carolina or another 
jurisdiction; or 

(9) the course sponsor or any official or instructor in the 
employ of the course sponsor has collected money 
from licensees for a continuing education course, 
but refuses or fails to provide the promised 
instruction. 

(b) If a licensee who is an approved course sponsor or an 
instructor in the employ of an approved course sponsor 
engages in any dishonest, fraudulent or improper conduct in 
connection with the licensee's activities as a course sponsor or 
instructor, the licensee shall be subject to disciplinary action 
pursuant to G.S. 93A-6. 

Authority G.S. 93A-3(c); 93A-4A. 

SECTION .0500 - COURSE OPERATIONAL 
REQUIREMENTS 

.0515 ACCOMMODATIONS FOR PERSONS WITH 
DISABILITIES 

Course sponsors may deviate from Commission rules 
concerning the conduct of continuing education courses, such 
as rules addressing classroom facilities, minimum class size 
and instructional methods, as may be necessary in order for the 
sponsor to comply with the Americans with Disabilities Act or 
other laws requiring such sponsors to accommodate persons 
with disabilities. When considering a request for special 
accommodation under the Americans With Disabilities Act or 
other similar law's, a sponsor shall make a reasonable inquiry 
to determine that the person making the request is a qualified 
individual with a disability and that the requested 
accommodation is appropriate for the particular disability. A 
sponsor providing a special accommodation for a licensee with 
a disability that requires the sponsor to deviate from 
Commission rules shall notify the Commission in writing of 
the accommodation at the time reports are submitted for the 
class session attended by the licensee. 

Authority G.S. 93A-3(c); 93A-4A. 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



797 



TEMPORARY RULES 



The Codifier of Rules has entered the following temporary rule(s) in the North Carolina Administrative Code. Pursuant to 
G.S. 150B-21.](e), publication of a temporary rule in the North Carolina Register serves as a notice of rule -making 
proceedings unless this notice has been previously published hx the agency. 



TITLE 10 - DEPARTMENT OF HEALTH & 
HUMAN SERVICES 

Rule-making Agency: Social Services Commission 

Rule Citation: 10 NCAC 29C .0201 -.0206 

Effective Date: October 13, 1999 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. I08A-25: 143B-153 

Reason for Proposed Action: On September 30, 1999, the 
President authorized the release of $20,298,765 in emergency 
contingency funds to North Carolina to assist the elderly, the 
disabled and low-income families experiencing an energy 
crisis because of damage and flooding due to Hurricane 
Floyd. To ensure immediate release of the emergency funds 
and the ability to effectively assist those effected by the 
hurricane, the Division of Social Services proposes to 
temporarily add a new section to 10 NCAC 29C. The new 
section will establish a Modified Crisis Intervention Program 
in the designated counties. The designated counties are: Pitt, 
Lenoir, Edgecombe. Nash, Wayne. Beaufort, Pender, 
Brunswick, New Hanover, Duplin. Halifax, Craven, Wilson, 
Columbus, Onslow, Martin, Sampson. Bertie, Hertford, 
Cumberland, Johnston. Greene, Robeson. Pasquotank. 
Carteret, Jones, Bladen, Harnett, Northampton, Dare, Hyde, 
Franklin, Currituck, Perquimans. Warren, Pamlico, Gates, 
Chowan, Hoke, Camden, Tvrell. Washington. The proposed 
temporary rules will expire on June 30, 2000. The immediate 
implementation of the proposed temporary rules will allow the 
designated county departments of social services to provide 
additional financial assistance to the elderly, the disabled and 
low income families experiencing energy crisis due to the 
damage and flooding caused by the hurricane. These 
emergency funds will provide some relief to count} 
departments of social services and other community 
organization budgets. 

Comment Procedures: Anyone wishing to comment should 
contact Sharnese Ransome. APA Coordinator, Social Seirices 
Commission, NC Division of Social Services, 325 N. Salisbury 
Street, Suite 819. 2401 Mail Service Center. Raleigh. NC 
27699-2401. phone 919-733-3055, fax 919-733-9386. 

CHAPTER 29 - INCOME MAINTENANCE: GENERAL 

SUBCHAPTER 29C - CRISIS INTERVENTION 



PROGRAM 

SECTION .0200 - MODIFIED CRISIS INTERVENTION 
PROGRAM 



(a) Tr 


e rules in this Seetion set forth the regulations for the 


Modified Crisis Intervention Program that will be 


administered in the following eounties that were impaeted bv 


Hurrieane Floyd: 


LU 


Beaufort 


m 


Bertie 


m 


Bladen 


ii] 


Brunswiek 


ill 


Camden 


£6} 


Carteret 


CD 


Chowan 


£81 


Columbus 


19) 


Craven 


(10) 


Cumberland 


(11) 


Currituck 


02) 


Dare 


(13) 


Duplin 


(14) 


Edgecombe 


(15) 


Franklin 


(16) 


(Tales 


(17.) 


Greene 


(18) 


Halifax 


(19) 


Harnett 


(20) 


Hertford 


i2jj 


Hoke 


£22) 


Hvde 


(23) 


Johnston 


124] 


Jones 


12?] 


Lenior 


(26) 


Martin 


(27) 


Nash 


(28) 


New Hanover 


(29) 


Northampton 


(30) 


Onslow 


Hi] 


Pamlico 


(32) 


Pasquotank 


an 


Pender 


134] 


Perquimans 


(35) 


Pitt 


(36) 


Robeson 


(37) 


Sampson 


(38) 


Tvrrell 


(39) 


Warren 


(40) 


Washington 


(41) 


Wilson 



798 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



TEMPORA RYR ULES 



(42) 



Wavne 



The rules in Section .0100 of JO NCAC 29C set forth the 
regulations for the remainder of the counties m the State. 

(h) "Residence" means a household residing m the counties 
designated m Paragraph (a) of this Rule 

History Note: Authority G.S. 108A-25; I43B-I53; 
Temporan Adoption Eff. October 13. 1999 to Expire on June 

3D. 2000. 



.0202 ELIGIBILITY REQUIREMENTS 

A household must meet the following requirements to be 
eligible for the Modified Crisis Intervention Program: 



Hi 



ill 



Income: A household must have income at or below 
1 10 percent of the current non-farm poverty income 
guidelines. The Rule JO NCAC 29B .0103 will 
govern the definition and computation of income. 
Crisis: A household is in crisis H the household: 
(a) Is experiencing a heating or cooling related 

emergency as defined in JO NCAC 29C 

.0102. 

Is m need of repairs of Us residence to ensure 

the household's ability to heat or cool its 

residence. 



<Jll 



^2 



L1J 



Needs heating or cooling equipment repaired 

or replaced m order to he able to heat or cool 

its residence. 

Citizenship: Individuals who are illegal aliens are 

not eligible for the Modified Crisis Intervention 

Program. 



.0204 METHOD OF PAYMENT 

Methods of payment include direct payments to recipients. 

fuel payments on behalf of recipients, provision of in-kind 

. services or temporary shelter and minor home repairs. The 

maximum direct payment to recipients is two hundred dollars 

($200.00). 

History Note: Authority G.S. 108A-25; 143B-153; 

Temporary Adoption Eff. October 13, 1999 to Expire on June 
30. 2000. 

.0205 OVERPAYMENTS AND SUSPECTED FRAUD 

The rules in 10 NCAC 49B .0606 and 10 NCAC 49B .0608 
govern overpayments and suspected traud. 

History Note: Authority G.S. 108A-25; 143B-153; 
Temporary Adoption Eff. October 13, 1999 to Expire on June 
30. 2000. 

.0206 APPEALS 

The rules in 10 NCAC 29B .0108 govern appeals. 

History Note: Authority G.S. 108A-25; 143B-153; 

Temporary Adoption Eff. October 13. 1999 to Expire on June 

3d. 2000. 

Rule-making Agency: Secretary of the Department of Health 
and Human Seixices 



History Note: Authority G.S. W8A-25; 143B-153: 
Temporary Adoption Eff. October 13. 1999 to Expire on June 
30. 2000. 



Rule Citation: 10 NCAC 42B .1201. .1212 - .1213. .2406. 
.2601: 42C .2013 - .2015. .4001: 42D .1301, .1303 - .1304, 
A407, .1413 - .1414. .1416. .1831, .2301 



.0203 BENEFIT LEVELS 

Payments may van based upon the severity of the crisis and 
the sen ices needed. The maximum payment to a household is 
as follows: 

( 1 ) Utility Payments: Maximum payment of two 
hundred dollars ($200.00) per application not to 
exceed six hundred dollars ($600 POi over the state 
fiscal year. 

(2) Temporan Shelter: Maximum of four hundred 
dollars ($400.00) per month with a three month 
maximum over the state fiscal year. 

(3) Home Repair/Appliance Replacement or Repair: 
Maximum of two thousand live hundred dollars 
($2.500) over the state fiscal year. 

(4) Miscellaneous: Maximum of t wo hundred dollars 
($200.00) over the state fiscal year. 

History Note: Authority G.S. 108A-25; 143B-153: 
Temporan Adoption Eff. October 13, 1999 to Expire on June 

3D. 200(1. 



Effective Date: 10 NCAC 42B .2601; 42C .4001; 42D .2301 

- November 30. 1999 

10 NCAC 42B .1212 - December 1. 1999 

10 NCAC 42B .1201, .1213, .2406; 42C .2013 - .2015; 42D 

.1301, .1303 - .1304, .1407, .1413 - .1414, .1416, .1831 - 

January 1. 2000 

Findings Reviewed and Approved by: Julian Mann 

Authority for the rule-making: G.S. 131D-2; 131D-4.5; 
131E-256; 143B-165; 

Reason for Proposed Action: Senate Bill 10 (S.L. 0334). 
resulting from the Department of Health and Human Senices ' 
Long Term Care Safety Initiative, mandates temporary 
rulemaking to address medication administration, staffing, 
staff qualifications, supervision of staff, and other areas that 
impact the health, safely and welfare of residents. 

Comment Procedures: Written comments may be submitted 
to Doug Bamck. Division of Facility Services, Group Care 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



799 



TEMPORAR Y RULES 



Licensure Section, 2708 Mail Service Center, Raleigh, NC 
27699-2708. 

CHAPTER 42 - INDIVIDUAL AND FAMILY SUPPORT 

SUBCHAPTER 42B - LICENSING OF HOMES 
FOR DEVELOPMENTALLY DISABLED ADULTS 

SECTION .1200 - PERSONNEL 

.1201 PERSONNEL REQUIREMENTS 

The qualifications of administrator, co-administrator, 
supervisor-in-charge. manager, and co-manager are as follows: 

( 1 ) shall be an adult; 

(2) shall be a high school graduate or certified under the 
G.E.D. Program (applies to those employed on or 
after August 1, 1991); 

(3) shall be in good physical, mental and emotional 
health (DSS- 1864); 

(4) shall provide written documentation about 
convictions of criminal offenses from the clerk of 
court in the county in which the conviction was 
made, and about any driving offenses other than 
minor traffic violations from the motor vehicles 
office; 

(5) shall earn 12 hours a year of continuing education 
credits related to the management of homes and 
training of developmenlally disabled adults. 

History Note: Authority G.S. 1 31 D-2; 1 31 D-4.5: 

I43B-153; 168-1; 168-9; S.L 99-0334; 

Eff. January 1, 1978; 

Amended Eff. My 1, 1990; September 1. 1987; 

ARRC Objection Lodged January 1. 1991; 

Amended Eff. August 1. 1991; 

Temporary Amendment Eff. December 1 , 1999; 

Temporary Amendment Eft. January L. 2000. 

.1212 CERTIFICATION OF ADMINISTRATOR 

Rule 10 NCAC 42D .1412 shall c ontro l fo r th i s S ub cha p te r . 

History Note: Authority G.S. 131 D-2; 90-288; 143B-165; 

S.L. 99-0334; S.L. 99-0443; 

Temporary Adoption Eff. December 1, 1999; 

Temporan Repeal Eff. December L 1999. 

.1213 QUALIFICATIONS OF MEDICATION AIDES 
AND THEIR SUPERVISORS 

(a) Effective Ja n ua r y 1. February 15, 2000, staff who 
administer medications, hereafter referred to as medication 
aides, and staff who directly supervise the administration of 
medications shall have documentation of successfully 
completing the clinical skills validation portion of the 
competency evaluation according to Paragraph (d) and (e) of 
Rule .1214 of this Section prior to the administration or 
supervision of the administration of medications. Medication 



aides shall also meet the staff training and competency 
requirements according to Rule .1210 of this Section. Persons 
authorized by state occupational licensure laws to administer 
medications are exempt from this requirement. 

(b) Effective July 1, 2000, medication aides and their direct 
supervisors, except persons authorized by state occupational 
licensure laws to administer medications, shall have 
successfully pas sed pass the written examination and within 
90 days after successful completion of the clinical skills 
validation portion of a competency evaluation according to 
Rule .1214 of this Section. Section, prior to administration or 
supervision of the administration of medications. Medication 
aides shall also meet the staff training and competency 
requirements according to Rule .1210 of this Section. 

(c) Medication aides and their direct supervisors, except 
persons authorized by state occupational licensure laws to 
administer medications, shall complete eight hours of state 
approved continuing education annually in medication 
administration. 

(d) Effective July 1. 2000. persons taking the competency 
evaluation for medication administration shall be a high school 
graduate or certified under the G.E.D. program or shall have 
passed an alternative examination established by the 
Department. 

(e) Training and competency validation of any unlicensed 
person who is to administer insulin shall be according to Rule 
.2404 of this Subchapter. Effective January 1, 2000. the 
training shall also be required for any unlicensed person who 
is to administer insulin. 

History Note: Authority G.S. 131 D-2; 131 D-4.5; 143B-165; 

S.L. 99-0334; 

Temporary Adoption Eff. December 1. 1999; 

Temporary Amendment Eff. Januan L_ 2000. 

SECTION .2400 - MISCELLANEOUS RULES 

.2406 HEALTH CARE PERSONNEL REGISTRY 

The taciliu shall compK with General Statute 1 ; ltf-256 
and supporting 10 NCAC 3B .1001 and .1002. 

History Note.Authority G.S. 131 D-2; 131 D-4.5; 131E-256; 

I43B-I65; S.L. 99-0334; 

Temporan Adoption Eff. January L_ 2000. 

SECTION .2600 - EFFECTIVE DATE OF 
TEMPORARY RULES 

.2601 CHANGE OF EFFECTIVE DATE OF 
TEMPORARY RULES 

The effective date of temporary Rules .1213, .1214, .1407. 
.1707. .1X03. .2501. .2502. and .2503 of this Subchapter is 
changed to January L 2000 . 

History Note: Authority G.S. 131 D-2; 131D-4.5; 143B- 
165; S.L. 99-0334; 



800 



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Temporary Adoption Eft'. November 30, 1999. 

SUBCHAPTER 42C - LICENSING OF FAMILY 
CARE HOMES 

SECTION .2000 - PERSONNEL 

.2013 QUALIFICATIONS OF MEDICATION AIDES 
AND THEIR SUPERVISORS 

(a) Effective Janua r y 1 . February 15, 2000, staff who 
administer medications, hereafter referred to as medication 
aides, and staff who directly supervise the administration of 
medications shall have documentation of successfully 
completing the clinical skills validation portion of the 
competency evaluation according to Paragraph (d) and (e) of 
Rule .2014 of this Section prior to the administration or 
supervision of the administration of medications. Medication 
aides shall also meet the staff training and competency 
requirements according to Rule 42C .201 1 of this Section. 
Persons authorized by state occupational licensure laws to 
administer medications are exempt from this requirement. 

(b) Effective July 1. 2000. medication aides and their direct 
supervisors, except persons authorized by state occupational 
licensure laws to administer medications, shall have 
successfully passed pass the written examination and within 
90 davs after successful completion of the. clinical skills 
validation portion of a competency evaluation according to 
Rule .2014 of this Section. Section prior to ad mi n i strat i o n o r 
supe r v i sion of the administiat i on of medication. Medication 
aides shall also meet the staff training and competency 
requirements according to Rule .201 1 of this Section. 

(c) Medication aides and their direct supervisors, except 
persons authorized by state occupational licensure laws to 
administer medications, shall complete eight hours of state 
approved continuing education annually in medication 
administration. 

(d) Effective July 1. 2000. persons taking the competency 
evaluation for medication administration shall be a high school 
graduate or certified under the GED program or shall have 
passed an alternative examination established by the 
Department. 

(e) Training and competency validation of any unlicensed 
person who is to administer insulin shall be according to Rule 
.3703 of this Subchapter. Effective January 1. 2000. the 
training shall also be required for any unlicensed person who 
is to administer insulin. 

History Note: Authority G.S. 131D-2; 131D-4.5; 143B-165; 

S.L. 99-0334; 

Temporary Adoption Eff. December 1, 1999; 

Temporary Amendment Eff. January L_ 21)00 . 

.2014 MEDICATION ADMINISTRATION 
COMPETENCY EVALUATION 

(a) The competency evaluation for medication 

administration shall be conducted according to guidelines 



established by the Department and shall consist of a written 
examination and a clinical skills evaluation. The guidelines 
will be available at no charge by contacting the Division of 
Facility Services. Group Care Licensure Section. 2708 Mail 
Service Center, Raleigh. NC 27699-2708. 

(b) An individual shall score at least 90% on the written 
examination which shall be a standardized examination 
established by the Department. After July 1. 2000. the clinical 



be 



skills portio n of th e co m p e ten c y val i dation shall on l y 
conducted afte r th e — w r itten exa m — has been — successful l y 
completed 

(c) A certificate of successful completion of the written 
examination shall be issued to each participant successfully 
completing the examination. A copy of the certificate shall be 
maintained and available for review in the facility. The 
certificate is transferable from one facility to another as proof 
of successful completion of the written examination. 

(d) The clinical skills validation portion of the competency 
evaluation shall be conducted by a registered nurse or a 
registered pharmacist consistent with their occupational 
licensing laws and who has a current unencumbered license in 
North Carolina. This validation shall be completed for those 
medication administration tasks to be performed in the facility. 
Competency validation by a registered nurse is required for 
unlicensed staff who perform any of the personal care tasks 
related to medication administration specified in 10 NCAC 
42C .3703. 

(e) The Medication Administration Skills Validation Form 
shall be used to document successful completion of the clinical 
skills validation portion of the competency evaluation for 
those medication administration tasks to be performed in the 
facility employing the medication aide. Copies of this form 
may be obtained at no cost by contacting the Group Care 
Licensure Section. Division of Facility Services. 2708 Mail 
Service Center. Raleigh. NC 27699-2708. The completed 
form shall be maintained and available for review in the 
facility and is not transferable from one facility to another. 

History Note; Authority G.S. 131D-2; 131D-4.5; 143B-165; 

S.L. 99-0334; 

Temporary Adoption Eff. December 1. 1999; 

Temporary Amendment Eff. January L, 20(H). 

.2015 HEALTH CARE PERSONNEL REGISTRY 

The facility shall comply with G.S. 131E-236 and 
supporting 10 NCAC 3B .1001 and .1002. 

History Note; Authority G.S. 13ID-2; 131D-4.5; 131E-256; 

143B-165; S.L. 99-0334; 

Temporary Adoption Eff. January L_ 2000. 

SECTION .4000 - EFFECTIVE DATE ON 
TEMPORARY RULES 

.4001 CHANGE OF EFFECTIVE DATE OF 
TEMPORARY RULES 



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801 



TEMPORARY RULES 



The effective date of temporary Rules .2005. .201 1. .2012, 
2207, .2214. .2302. .2501. .2505. .2506. .2703, .3401. .3402. 
.3701, .3703, .3801-. 3X10. .390 1 -.3903 of this Subchapter is 
charmed to January 1. 2000. 

Historx Note: Authority G.S. 131D-2; 131D-4.5; 143B-165; 

S.L. 99-0334; 

Temporary Adoption Eff. November 30. 1999. 

SUBCHAPTER 42D - LICENSING OF HOMES 
FOR THE AGED AND INFIRM 

SECTION .1300 - MANAGEMENT 

.1301 MANAGEMENT OF FACILITIES WITH A 

CAPACITY OR CENSUS OF SEVEN TO 
THIRTY RESIDENTS 

(a) The requirements in Paragraphs (a) and (c) of Rule 10 
NCAC 42C .1901 shall control for this Subchapter for 
facilities with a capacity or census of 7 to 26 30 residents. 

(b) At all times there must be one administrator or 
supervisor-in-charge who is directly responsible for assuring 
that all required duties are carried out in the home and for 
assuring that at no time is a resident left alone in the home 
without a staff member. In addition to the requirements in 10 
NCAC 42C .1901(a) and (c). one of the following 
arrangements must be used to manage a h ome for the aged and 
disabled, facility with a capacity of seven to 30 residents: 

( 1 ) The administrator fives is in the home, home or 
r es i des within 500 feet of the home and rs 
immediately available. To be immediately 
available, the administrator must be on stand-by and 
have direct access to either a two-way intercom 
system or a two-way intercom line on the existing 
telephone system that connects the licensed home 
with the private residence of the administrator. The 
equipment installed must be in working condition 
and must be located in the bedroom of the 
administrator: or 

(2 ) The administ r ato r emp l oys a A supervisor-in-charge 
to live is in the home or re s i des within 500 feet of 
the home and be is immediately available. The 
conditions of being "immediately available" cited in 
Subparagraph (b)(1) of this Rule shall apply to this 
arrangement; or 

(~3l The admin i strator employs supervisors in charge, at 

least on e of whom wil l he awake and on dun du rin g 
each shift (first, second, a n d t hird): o r 
t4l (3} When there is a cluster of licensed homes, each with 
a capacity of 7 to 12 residents, located adjacently on 
the same site, there must be at least one staff 
member, either live-in or on a shift basis in each of 
these homes. In addition, there must be at least one 
administrator or supervisor-in-charge who lives is 
within 500 feet of each home, re immediately 
available, and who — rs directly responsible for 



assuring that all required duties are carried out in 
each home. To be immediately available, the 
administrator or supervisor-in-charge must be on 
stand-by and have direct access to either a two-way 
intercom system or a two-way intercom line on the 
existing telephone system that connects these homes 
with each other and with the residence of the 
administrator or supervisor-in-charge. The 
equipment installed must be in working condition 
and must be located in the bedroom of the 
administrator or supervisor-in-charge. 

History Note: Authority G.S. 131D-2; 131D-4.5; 143B-153; 
S.L 99-0334; 

Eff. January 1. 1977: 

Readopted Eff. October 31. 1977; 

Amended Eff. July 1. 1990; April 1. 1987; April 1. 1984; 

Temporary Amendment Eff. December 1. 1999; 

Temporary Amendment Eff. January 1^ 2000. 

.1303 MANAGEMENT AND PERSONAL CARE 
AIDE SUPERVISION IN FACILITIES WITH 
A CAPACITY OR CENSUS OF 31 TO 80 
RESIDENTS 

(a) In facilities with a capacity or census of 31 to 80 
residents, there shall be a supervisor of personal care aides. 



including medication aides, on dutv in the facility on first and 
second shifts: and there shall be an administrator on call. 
which means able to be contacted by telephone, pager or two- 
way intercom, at al] limes when not m the building. The 
supervisor shall meet the qualifications specified in Rule .1413 
of this Subchapter. ( For staffing chart, see Rule .1414 of this 
Subchapter. | 

(b) On first and second shifts m facilities with a capacity or 
census of 3 1 to 70 residents, the supervisor of personal care 
aides, hereafter referred to as supervisor, may provide up to 
four hours of aide dutv per shift. These four hours ma\ be 
counted as required hours of aide dutv. The supervisor's hours 
on dutv shall not be counted as required hours of aide duty 
other than as specified in this Rule. 

(c) On third shift in facilities with a capacity or census of 
3J_ to 60 residents, the supervisor shall be in the facility or 
within 500 feet and immediately available, as defined in Rule 
.1301 of this Section. 

(d) On third shift in facilities with a capacity or census of 6_1_ 
to 80 residents, the supervisor shall be on 

dutv in the facility lor a least four hours and within 500 feet 
and immediately available, as defined m rule . I 30 1 of this 
Section, for the remaining four hours. The four hours on 
dutv shall not be counted as required hours of aide dutv. 

History Note: Authority G.S. 131D-2; 131D-4.5; 143B-165; 
S.L 99-0334; 

Temporal^ Adoption Eff. January L_ 2000. 



.1304 



MANAGEMENT OF FACILITIES WITH A 



802 



NORTH CAROLINA REGISTER 



November 15, 1999 



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TEMPORARY RULES 



CAPACITY OR CENSUS OF 81 OR MORE 
RESIDENTS 

(a) A facility with a capacity or census of 81 of more 
residents shall be under the direct control of a certifie d an 
administrator admi n istrator. — hereaftei — r efer r ed — to — as 
administrator, who shall be responsible for the operation, 
administration, management and supervision of the facility on 
a full-time basis to assure that all care and services to residents 
are provided in accordance with all applicable local, state and 
federal regulations and codes. The administrator shall be on 
duty in the facility at least eight hours per day. five days per 
week and shall not serve simultaneously as a personal care 
aide supervisor or other staff to meet staffing requirements 
while on duty as an administrator. (For staffing chart, sec 
Rule .1416 of this Subchapter.) If there is more than one 
facility on a contiguous parcel of land or campus setting, and 
the combined licensed capacity of the facilities is 200 beds or 
less, there may be one administrator on duty for all the 
facilities on the campus. The administrator shall not serve 
simultaneously as a personal care aide supervisor m this 
campus setting. 



(b) When the administrator is not on duty in the facility, 
there shall be a person designated as administrator-in-charge 
on duty in the facility who has responsibility for the overall 
operation of the facility. The supervisor may serve 
simultaneously as the administrator-in-chamc. Each facility 
on a contiguous parcel of land or campus setting, as described 
in Paragraph (a) of this Rule, shall have a person designated 
as the administrator-in-charge in the facility when the 
administrator is not on duty. 

(c) The administrator-in-charge shall meet the following 
qualifications: 



(1) 
(2) 



be 21 years or older: 

be at least a high school graduate or certified under 
the G.E.D. program or have passed an alternative 
examination established by the Department: 

(3) meet the general health requirements according to 
Rule .1406 of this Subchapter: and 

(4) earn at least 12 hours a year of continuing education 
credits related to the management of adult care 
homes and care of aged and disabled persons in 
accordance with procedures established by the 
Department. 

(d) The administrator shall be on call, which means able to 
be contacted by telephone, pager or two-way intercom at all 
times when not in the building. 

HistonNore: Authority G.S. 131D-2; 131D-4.5; 143B-165; 

S.L. 99-0334; 

Temporaiy Adoption Eff. December 1, 1999; 

Temporary Amendment Eft. Janitan 1, 2000. 

SECTION .1400 - PERSONNEL 

.1407 STAFFING 

(a) In addition to the requirements set forth in Paragraphs 



(b) through (e) of this Rule, the requirements in 10NCAC 42C 
.2005 shall control for this Subchapter. References to homes 
in Paragraphs (b) through (e) of this Rule refer to homes for 
the aged and disabled. 

(b) Homes must staff to the licensed capacity of the home 
or to the resident census. When a home is staffing to resident 
census, a daily census log must be maintained which lists 
current residents by name, room assignment and date of 
admission and must be available for review by the monitoring 
and licensing agencies. 

(c) Homes with capacity or census of 1 2 or fewer residents: 

( 1 ) At all times there must be an administrator or 
supervisor-in-charge in the home or within 500 feet 
of the home and immediately available; 

(2) A free standing home with capacity or census of 12 
or fewer residents must comply with the following 
staffing: 

( A ) When the administrator or 
supervisor-in-charge is not on duty within the 
home, there must be at least one staff member 
on duty on the first and second shifts and at 
least one staff member on call within the 
building on third shift. There must be a call 
system connecting the bedroom of the staff 
member, who may be asleep on the third 
shift, with each resident's bedroom; and 

( B ) When the administrator or 
supervisor-in-charge is on duty within the 
home on the first and second shifts and on 
call within the home on the third shift, 
another staff member (i.e.. co-administrator, 
supervisor-in-charge or aide) must he in the 
building or within 500 feet of the home and 
immediately available. 

(3) A cluster of homes with capacity or census of 12 or 
fewer residents must comply with the following 
staffing: 

(A) When there is a cluster of up to six licensed 
homes located adjacently, there must be at 
least one administrator or 
supervisor-in-charge who lives within 500 
feet of each of the homes, is immediately 
available, and who. as supervisor for all the 
homes, is directly responsible for assuring 
that all required duties are carried out in each 
home; and 

(B) In each of the homes, at least one staff 
member must be on duty on the first and 
second shifts and at least one staff member 
must be on call within the building during the 
third shift. There must be a call system 
connecting the bedroom of the staff member, 
who may be asleep on the third shift, with 
each resident's bedroom. 

(4) The following shall apply to all homes with capacity 
or census of 1 2 or fewer residents: 



14:10 



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November 15, 1999 



803 



TEMPORARY RULES 



(A) The administrator must prepare a plan of 
operation for the home (each home in a 
cluster) specifying the staff involved, their 
regularly assigned duties and the amount of 
time estimated to be spent for each duty. 
There must be a current plan of operation on 
file in the home, available for review by bona 
fide inspectors and the monitoring and 
licensing agencies; 

(B) At least 12 hours must be spent daily 
providing for the personal services, health 
services, drug management, meaningful 
activities, and other direct services needed by 
the residents. These activities are the primary 
responsibility of the staff member(s) on duty 
on the first and second shifts: however, other 
help, such as the supervisor-in-charge and 
activities coordinator may be used to assist in 
providing these services; 

(C) During the remaining hours, the staff member 
on duty may perform housekeeping and food 
service duties as long as the staff member can 
respond immediately to resident calls or the 
residents are otherwise supervised. Also, the 
person on call within the home may perform 
housekeeping duties between the hours of 9 
p.m. and 7 a.m. if the duties do not hinder 
care of residents or immediate response to 
resident calls, do not disrupt residents" normal 
lifestyles and sleeping patterns; and do not 
take the person on call out of view of where 
the residents are; 

(D) Additional help must be available daily to 
assure adequate housekeeping and food 
service. 

(d) Homes with capacity or census of 13-20 must comply 
with the following staffing. When the home is staffing to 
census and the census falls below 13 residents, the staffing 
requirements for a home with 12 or fewer residents will apply. 

( 1 ) At all times there must be an administrator or 
supervisor-in-charge in the home or within 500 feet 
of the home and immediately available; 

(2) When the administrator or supervisor-in-charge is 
not on duty within the home, there must be at least 
one staff member on duty on the first, second and 
third shifts; 

(3) When the administrator or supervisor-in-charge is 
on duty within the home, another staff member (i.e. 
co-administrator, supervisor-in-charge or aide) must 
be in the building or within 500 feet of the home and 
immediately available; 

(4) The job responsibility of the staff member on duty 
within the home is to provide the direct personal 
assistance and supervision needed by the residents. 
Any housekeeping duties performed by the staff 
member between the hours of 7 a.m. and 9 p.m. are 
to be limited to occasional, non-routine tasks. The 



staff member may perform housekeeping duties 

between the hours of 9 p.m. and 7 a.m. as long as 

such duties do not hinder care of residents or 

immediate response to resident calls, do not disrupt 

residents' normal lifestyles and sleeping patterns and 

do not take the staff member out of view of where 

the residents are. The staff member on duty to 

attend to the residents is not to be assigned food 

service duties; and 

(5) In addition to the staff member(s) on duty to attend 

to the residents, there must be sufficient help 

available daily to perform necessary housekeeping 

and food service duties. 

(e) Homes with capacity or census of 21 or more must 

comply with the following staffing. When the home is staffing 

to census and the census falls below 21 residents, the staffing 

requirements for a home with a census of 13-20 will apply. 

( 1 ) While the Division of Facility Services may require 

a home to have additional aide duty in excess of the 

minimum (based on the condition of the residents 

and the layout of the building), the daily total of aide 

duty hours on each 8-hour shift must at all times 

(other than during short, unforeseeable 

circumstances) be at least: 

(A) First shift (morning) - 0.4 hours of aide duty 
frn — each — r esident — (licensed — capacity — or 
r esident ce n sus), or 8.0 16 hours of aide duty 
per each 20 residents plus 3.0 hours fo r a ll 
other r esidents, whichever is greater: and for 
facilities with a census or capacity of 21 to 40 
residents: and J_6 hours of aide duty plus four 
additional hours of aide duty for every 
additional 10 or fewer residents for facilities 
with a census or capacity of 4J_ or more 
residents. (For staffing chart, see Rule .1416 
of this Section. ) 

(B) Second shift (afternoon) - 0.4 hours of aide 
duty for each resident (licensed capacity or 
r es i dent census), or 8.0 16 hours of aide duty 
p e r each 20 residents plus 3 . hou r s fo r a ll 
othe r r es i de n ts, whichever is greater: and for 
facilities with a census or capacity of 21 to 40 
residents; and 16 hours of aide duty plus four 
additional hours of aide duty for every 
additional 10 or fewer residents for facilities 
with a census or capacity of 44 or more 
residents. (For staffing chart, see Rule . 1416 
of this Section.) 

(C) Third shift (evening) - 8.0 hours of aide duty 
per 30 or fewer residents (licensed capacity or 
resident census). (For staffine chart, see Rule 
.1416 of this Section.) 

(D) The facility shall have additional aide duty to 
meet the needs of the facility's heavy care 
residents equal to the amount of time 
reimbursed by Medicaid. As used in this 
Rule, the term, "heavy care resident", means 



804 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



TEMPORARY RULES 



an individual residing in an adult care home 
who is defined as "heavy care" by Medicaid 
and for which the facility is receiving 
enhanced Medicaid payments. 

(2) The following describes the nature of the aides 
duties, including allowances and limitations: 

(A) The job responsibility of the aide is to 
provide the direct personal assistance and 
supervision needed by the residents; 

(B) Any housekeeping performed by an aide 
between the hours of 7 a.m. and 9 p.m. is to 
be limited to occasional, non-routine tasks, 
such as wiping up a water spill to prevent an 
accident, attending to an individual resident's 
soiling of his bed, or helping a resident make 
his bed. Routine bed-making is a permissible 
aide duty; 

(C) If the home employs more than the minimum 
number of aides required, any additional 
hours of aide duty above the required hours 
of direct service between 7 a.m. and 9 p.m. 
may involve the performance of 
housekeeping tasks; 

(D) An aide may perform housekeeping duties 
between the hours of 9 p.m. and 7 a.m. as 
long as such duties do not hinder the aide's 
care of residents or immediate response to 
resident calls, do not disrupt the residents' 
normal lifestyles and sleeping patterns, and 
do not take the aide out of view of where the 
residents are. The aide must be prepared to 
care for the residents since that remains his 
primary duty; and 

(E) Aides are not to be assigned food service 
duties; however, providing assistance to 
individual residents who need help with 
eating is an appropriate aide duty. 

(3) In addition to the staffing required for management 
and aide duties, there must be sufficient personnel 
employed to perform necessary housekeeping and 
food service duties. 

History- Note: Authority G.S. 131D-2; 131D-4.3; 131D-4.5; 

143B-153; 

Eff. January I. 1977; 

Readopted Eff. October 31, 1977; 

Amended Eff. December 1. 1991; September I. 1990; July 1, 

1990; April 1, 1984; 

Temporal'} Amendment Eff. December 1, 1999; 

Temporary Amendment Eff. January 1 . 2000. 

.1413 RESPONSIBILITIES AND QUALIFICATIONS 
OF PERSONAL CARE AIDE SUPERVISOR IN 
FACILITIES WITH A CAPACITY OR 
CENSUS OF 71 OR MORE RESIDENTS 

(a) E f fect i ve Jan uary 1, 2000. there There shall be at least 



one personal care aide supervisor, hereafter referred to as 
supervisor, on duty in the facility on each first and second 
shifts shift whose m facilities with a capacity or census of 7J_ 
, to 90 residents. On third shift m facilities with a capacity of 
7_1 to 90 residents, the supervisor shall he on duty m the 
facility for at least four hours and within 500 feet and 
immediately available, as defined m Rule . 1 301 of this 
Subchapter, for the remaining lour hours. The four hours on 
duty shall not be counted as required hours of aide duty. (For 
staffing chart, see Rule .1416 of this Section.) 

(b) In facilities with a capacity or census of 91 or more 
residents, there shall he at least one supervisor on duty m 

the facility on each shift for less than 64 hours of aide duty; 
two supervisors for 64 to less than 96 hours of aide duty; and 
three supervisors for 96 to less than 1 2S hours of aide duty. 
(For staffing chart, see Rule 1416 of this Section.) 

(c) The primary job responsibility of the supervisor in 
laciluies \\ iih a capacity or census of 7J_ or more residents is 
the direct supervision of personal care aides, a i d e s and 
including medication aides, a i d e s i n faci l ities with a census or 
capac i ty of 21 o r mo r e re s i de n ts. While the supervisor may be 
involved in performing some personal care or management 
tasks, the primary responsibility of the supervisor is to assure 
that care and services are provided to residents by personal 
care aides in a safe and secure manner and according to 
licensure rules. This involves observing personal care aides in 
the performance of their duties; instructing, correcting and 
consulting with aides as needed; and reviewing documentation 
by aides. The Divisio n of Facili t y S er vices m ay r equire a 



h 



n i ne to nave addit i onal su p e r visors nascu o n me n um n e r ot 
aides to be supervised and t h e -c o n dit i o n of the res i de n ts. 

ttr) (dj A supervisor on duty shall not serve simultaneously 
as the administrator, personal care aide or any other staff 
except the administrator-in-charge in the absence of the 
administrator. 

rcl (e) A supervisor shall meet the following qualifications: 

( 1 ) be 2 1 years or older; 

(2) be a high school graduate or certified under the 
G.E.D. program, or have passed an alternative 
examination established by the Department; 

(3) meet the general health requirements according to 
Rule .1406 of this Section: 

(4) have at least 12 months of experience in performing 
or supervising the performance of duties to be 
supervised during a period of three years prior to the 
effective date of this rule or the date of hire, 
whichever is later; 

(5) meet the same minimum training and competency 
requirements of the aides being supervised; and earn 
at least 12 hours a year of continuing education 
credits related to the care of aged and disabled 
persons in accordance with procedures established 
by the Department of Health and Human Services. 

History Note; Authority G.S. 131D-2; I31D-4.5; 143B-165; 
S.L. 99-0334; 



14:10 



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November 15, 1999 



805 



TEMPORARY RULES 



Temporary Adoption Eff. December 1. 1999; 
Temporary Amendment Eff. Januarx 1. 2000. 

.1414 QUALIFICATIONS OF MEDICATION AIDES 
AND THEIR SUPERVISORS 

(a) Effective Ja n uary 1 . February 15, 2000. staff who 
administer medications, hereafter referred to as medication 
aides, and staff who directly supervise the administration of 
medications shall have documentation of successfully 
completing the clinical skills validation portion of the 
competency evaluation according to Paragraph (d) and (e) of 
Rule .1415 of this Section prior to the administration or 
supervision of the administration of medications. Medication 
aides shall also meet the staff training and competency 
requirements according to Rule .1410 of this Section. Persons 
authorized by state occupational licensure laws to administer 
medications are exempt from this requirement. 

(b) Effective July 1 , 2000, medication aides and their direct 
supervisors, except persons authorized by state occupational 
licensure laws to administer medications, shall have 
successfully p a ss ed pass the written examination and within 
90 days after successful completion of the clinical skills 
validation portion of a competency evaluation according to 
Rule .1415 of this Section. Sectio n p r io r to administration or 



supervision of the administration of medications. Medication 
aides shall also meet the staff training and competency 
requirements according to Rule .1410 of this Section. 

(c) Medication aides and their direct supervisors, except 
persons authorized by state occupational licensure laws to 
administer medications, shall complete eight hours of state 
approved continuing education annually in medication 
administration. 

(d) Effective July 1, 2000, persons taking the competency 
evaluation for medication administration shall be a high school 
graduate or certified under the G.E.D. program or shall have 
passed an alternative examination established by the 
Department. 

(e) Training and competency validation of any unlicensed 
person who is to administer insulin shall be according to Rule 
.1829 of this Subchapter. Effective January 1, 2000, the 
training shall also be required for any unlicensed person who 
is to administer insulin. 

History Note: Authority G.S. 131D-2; 131D-4.5; 143B-165; 

S.L. 99-0334; 

Temporary Adoption Eff. December 1. 1999; 

Temporarx Amendment Eff. Januarx f 2000. 



.1416 STAFFING CHART 

The following chart specifies the required aide, supervisory and management staffing for each eight-hour shift in facilities with 
a capacity or census of 21 or more residents according to Rules .1301. .1303, .1304. .1407 and .1413 of this Subchapter. 



Bed Count 


Position Type 


First Shift 


Second Shift 


Third Shift 


21-30 


Aide 


16 


16 


8 


Supervisor 


Not Required 


Not Required 


Not Required 


Administrator/SIC 


In the building, or within 500 feet and immediately available. 


3 1 - 40 


Aide 


16 


16 


16 


Supervisor 


8* 


8* 


In the building, or 

within 500 feet and 

immediately available. 


Administrator 


On call 


41-50 


Aide 


20 


20 


16 


Supervisor 


8* 


8* 


In the building, or 

within 500 feet and 

immediately available. 


Administrator 


On call 




Aide 


24 


24 


16 



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Bed Count 


Position Type 


First Shift 


Second Shift 


Third Shift 


51-60 


Supervisor 


8* 


8* 


In the building, or 

within 500 feet and 

immediately available. 


Administrator 


On call 


61-70 


Aide 


28 


28 


24 


Supervisor 


8* 


8* 


4 hours within the 
facility/4 hours within 

500 feet and 
immediately available. 


Administrator 


Oneall 


71-80 


Aide 


32 


3 ~> 


24 


Supervisor 


8 


8 


4 hours within the 
facility/4 hours within 

500 feet and 
mimediateh available. 


Administrator 


On eall 


81-90 


Aide 


36 


36 


24 


Supervisor 


8 


8 


4 hours within the 
facility/4 hours within 

500 feet and 
immediateh available 


Administrator 


5 days/week: Minimum of 40 hours. When not in facility, on call 


91-100 


Aide 


40 


40 


32 


Supervisor 


8 


8 


8 


Administrator 


5 days/week: Minimum of 40 hours When not in facility, on call 


101-110 


Aide 


44 


44 


32 


Supervisor 


8 


8 


8 


Administrator 


5 days/week: Minimum of 40 hours When not in facihtx . on call 


1 11 - 1 20 


Aide 


48 


48 


32 


Supervisor 


8 


8 


8 


Administrator 


5 days/week Minimum of 40 hours. When not in facility, on call 



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807 



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Bed Count 


Position Type 


First Shift 


Second Shift 


Third Shift 


121-130 


Aide 


52 


52 


40 


Supervisor 


8 


8 


8 


Administrator 


5 days/week: Minimum of 40 hours. When not in facility, on call. 


131-140 


Aide 


56 


56 


40 


Supervisor 


S 


8 


8 


Administrator 


5 davs/week Minimum of 40 hours. When not in facility, on call 


141-150 


Aide 


60 


60 


40 


Supervisor 


8 


8 


8 


Administrator 


5 days/week: Minimum of 40 hours. When not in facility, on call 


151-160 


Aide 


64 


64 


48 


Supervisor 


16 


16 


8 


Administrator 


5 days/week Minimum of 40 hours. When not in facility, on call 


161-170 


Aide 


68 


68 


48 


Supervisor 


16 


16 


8 


Administrator 


5 days/week: Minimum of 40 hours. When not in facility, on call 


1 7 1 - 1 80 


Aide 


72 


72 


48 


Supervisor 


lh 


16 


8 


Administrator 


5 days/week: Minimum of 40 hours When not in facility, on call 


181-190 


Aide 


76 


76 


56 


Supervisor 


16 


16 


8 


Administrator 


5 davs/week: Minimum of 40 hours. When not in facility, on call 


191-200 


Aide 


80 


80 


56 


Supervisor 


16 


16 


8 


Administrator 


5 davs/week: Minimum of 40 hours When not in facility, on call 




Aide 


84 


84 


56 



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Bed Count 


Position Tvpe 


First Shift 


Second Shilt 


Third Shift 


201-210 


Supervisor 


16 


16 


8 


Administrator 


5 days/week: Minimum of 40 hours When not in facility, on call. 


211-220 


Aide 


88 


88 


64 


Supervisor 


16 


16 


16 


Administrator 


5 days/week: Minimum of 40 hours. When not in facility, on call. 


221-230 


Aide 


92 


92 


64 


Supervisor 


16 


16 


16 


Administrator 


5 days/week: Minimum of 40 hours. When not in facility, on call. 


231-240 


Aide 


96 


96 


64 


Supervisor 


24 


24 


16 


Administrator 


5 days/week: Minimum of 40 hours When not in facility, on call. 



*Supervisor may conduct up to tour hours of aide duty. 

History Note: Authority G.S. 131D-2; I3ID-4.5; 143B-165; S.L. 99-0334; 
Temporary Ac/option Eft. January ]_,_ 21)00. 



SECTION .1800 - REMAINING 
POLICIES AND REGULATIONS 

.1831 HEALTH CARE PERSONNEL REGISTRY 

The facility shall comply with G.S 131 E-256 and supporting 
10NCAC3B .1001 and. 1002. 



History Note: Authority G.S. 131D-2; 13W-4.5; 131 E-256; 

143B-165; S.L. 99-0334; 

Temporary Adoption Eff. January 1. 20(H). 

SECTION .2300 - EFFECTIVE DATE ON 
TEMPORARY RULES 

.2301 CHANGE OF EFFECTIVE DATE OF 
TEMPORARY RULES 

The effective date of temporary Rules .1302. .1401. .1402. 
.1410. .1411. .1412. .1415. .1503. .1605. .1804. 1821. .1901- 
.1910. .2001-201 1. .2101. .2102. .2201-2203 of this 
Subchapter is changed to January _L 2000. 

History Note: Authority G.S. 13ID-2; 13JD-4.5; 143B-165; 

S.L 99-0334; 

Temporary Adoption Eff. November 30, 1999. 



TITLE 11 - DEPARTMENT OF INSURANCE 

Rule-making Agency: AT Department of Insurance 

Rule Citation: 1 1 NCAC 10 .0105. .1110 

Effective Date: December 1. 1999 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 58-2-40; 58-6-5; 58- 
41-50 

Reason for Proposed Action: 

11 NCAC 10 .0105 - The 1999 NC General Assembly in S.L 

1999-435 repealed the policy form and rate filing fees that 

were contained in G.S. 58-6-5. This amendment conforms this 

Rule to the repeal. 

11 NCAC 10 .1110 - The 1999 NC General Assembly in S.L 

1999-132 changed the elements of the formula used by 

workers ' compensation insurers to arrive at their premium 

rates. This amendment conforms the rule to the new statute. 



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Comment Procedures: Written comments may be sent to 
Ellen K. Sprenkel, NC Department of Insurance, PO Box 
26387. Raleigh. NC 27611 

CHAPTER 10 - PROPERTY AND CASUALTY 
DIVISION 

SECTION .0100 - GENERAL PROVISIONS 

.0105 MANUSCRIPT OR INDIVIDUAL RISK 
FILINGS 

(a) Within 60 days after the inception date of a manuscript 
or individual risk policy, the insurer shall submit to the 
Department's Property and Casualty Division: 

( 1 ) Any form or endorsement not previously filed with 
the Department and approved for use. 

(2) A statement explaining why a manuscript or 
individual risk policy was needed. 

f+) The a p p r opriat e filing fee. 

(b) Continuous policies are not permitted. 

(c) A copy of the approved filing shall be retained by the 
filer in accordance with 1 1 NCAC 19 .0002 through 1 1 NCAC 
19.0005. 

(d) If the rates have been determined by an unfiled "(a) 
rating" or "individual risk rating", the insurer shall submit the 
following: 

( 1 ) A statement describing how the rates were 
calculated. 

(2) A certification that the rates are not excessive, 
inadequate, or unfairly discriminatory. 

History Note: Authority G.S. 58-2-40; 58-6-5; 58-41-50; 

58-43-5; 

Eff. April 1. 1992; 

Amended Eff. August 1. 1998; February 1. 1996; 

Temporary Amendment Eff. December L 1999 . 

SECTION .1100 - N.C. HOME INSPECTOR 
STANDARDS OF PRACTICE 

.1110 WORKERS' COMPENSATION LOSS COSTS 
QUESTIONNAIRE 

For those filings made in accordance with 11 NCAC 10 
.1102(15). supporting information shall be presented as 
follows: 

( 1 ) Reference Filing Adoption Form: 

(a) Insurer's name. 

(b) Contact person for filing. 

(c) Title of contact person. 

(d) Phone number. 

(e) Insurer's FEIN. 

(f) Insurer's file number. 

(g) Department file number. 

(h) NCRB reference filing number, 
(i) Effective date. 



(j) Insurer's proposed effective date (if different 

from NCRB effective date), 
(k) Insurer's approximate market share of North 

Carolina written premium. 
(1) Whether the multiplier is applicable to this 

filing only or to subsequent reference filings, 
(in) Statement of accuracy of information. 
(n) Signature of company official, 
(o) Date signed. 
(2) Summary of Supporting Data Form: 

(a) Statement of whether the filing applies 
uniformly to all workers' compensation 
classes. 

(b) Loss costs modification: 

(i) Without modification (factor equals 

1.000). 
(ii) With modification (supporting 
documentation required). 

(c) Loss costs modification factor. 

(d) Selected expenses (attach Expense Provision 
Exhibit): 

ti) Commission and brokerage. 
(ii) Other acquisition, 
(iii) General expenses, 
(iv) Taxes, licenses, fees, loss based 

assessments, 
(v) Profit. contingencies, credit for 

investment income. 
(vi) Other. 
(vii) Total (i+ii+iii+iv+v+vi). 

(e) Development of Expected Loss and Loss 
Adjustment Expense (Target Cost) Ratio: 
Expressed in decimal form: 1.000-(d)(vii). 

(f) Overall effect of expense constant and 
minimum premiums: Expressed in decimal 
form. i.e.. 1.2% overall effect would be 
0.988. 

(g) Overall effect of size-of-risk discounts plus 
expense gradation recognition in retrospective 
rating: Expressed in decimal form, i.e., 8.6% 
average discount would be 0.914. 

(h) Provision for premium taxes, licenses, fees, 

and loss based assessments: See NCRB 

Reference Filing. Exhibit II. 
(i) Company formula loss costs multiplier (b)(ii) 

x (1.000- h)/ [ig)- (d)(vii)] x (f). 
(j i Company selected loss costs multiplier. 

Explain any differences between (i) and (j). 
(k) Rate level changes for the coverages to which 

this page applies. 
( I ) Statement of w nether the insurer is amending 

the minimum premium formula. 
( m ) Statement of whether the insurer is amending 

the expense constant(s). 
(n) Statement of whether the insurer is changing 

the premium discount schedules. 



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TEMPORARY RULES 



(o) If the answer to (1). (m). or <n) is yes, 
documentation is required. 
(?) Expense Provisions Exhibit: For the following 
items, the insurer shall provide the three most recent 
years, the average, industry average, and the 
selected: 

(a) Commissions and brokerage. 

(b) Other acquisition. 

(c) General expenses. 

(d) Taxes, licenses, fees, and loss based 
assessments. 

(e) Profit, contingencies, and investment income: 

(i) Profit and contingencies, 
(ii) Credit for investment income. 

(f) Other. 

(g) Total (a+b+c+d+e+f). 

The insurer shall indicate if the insurer's actual expense ratios 
are North Carolina, countrywide, or other (explain): and if the 
insurer's actual expense ratios are a percent of standard 
premium, percent of net premium, or other (explain). The 
insurer shall explain if the selected provisions differ from the 
average for reasons other than rounding. 

History Note: Authority G.S. 58-2-40; 58-36-15; 58-36- 

100; 

Eff. February 1. 1996; 

Temporary Amendment Eff'. December L, 1999. 

Rule-making Agency: NC Department of Insurance 

Rule Citation: 11 NCAC 1 IF .0401 -.0405, .0501 -.0504 

Effective Date: 15 NCAC 11F .0401-.0405 - Januan 1.2000 
15 NCAC 11F .0501:0504 - December I, J 999 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 58-2-40; 58-58-50 

Reason for Proposed Action: The 1999 NC General 
Assembly in S.L. 1999-219 authorized the Commissioner of 
Insurance to adopt rules governing minimum valuation 
standards for reserves of life insurance companies which 
required these amendments, and to recognize new annuity 
mortality' tables for determining reserve liabilities for 
annuities before January 1 , 2000. 

Comment Procedures: Written comments may be sent to 
Walter James, NC Department of Insurance, PO Box 26387, 
Raleigh, NC 27611. 

CHAPTER 11 - FINANCIAL EVALUATION DIVISION 

SUBCHAPTER 11F - ACTUARIAL 



SECTION .0400 - COMMISSIONERS RESERVE 
VALUATION METHOD 

.0401 APPLICABILITY 

(a) This Section does not apply to: 

( 1 ) Any individual life insurance policy issued on or 
after the effective date of this Section if the policy is 
issued in accordance with and as a result of the 
exercise of a reentry provision contained in the 
original life insurance policy of the same or greater 
face amount, issued before the effective date of this 
Section, that guarantees the premium rates of the 
new policy; nor to subsequent policies issued as a 
result of the exercise of such a provision, or a 
derivation of the provision, in the new policy. 

(2) An\ universal lite polic\ that meets all the following 
requirements: 

(A) The secondary guarantee period, if any, is 
fi vc \ cars or less. 

(B) The specified premium for the secondary 
guarantee period is not less than the net level 
reserve premium for the secondary guarantee 
period based on the CSO valuation tables as 
defined m JJ NCAC 11F .0402(6) and the 
applicable valuation interest rate. 
The initial surrender charge is not less 



iC) The 



than 

1009; of the first year annualized specified 
premium for the secondary guarantee period. 

r2i 13] Any variable life insurance policy that provides for 
life insurance, the amount or duration of which 
varies according to the investment experience of any 
separate account or accounts. 

t3il4] Any variable universal life insurance policy that 
provides for life insurance, the amount or duration 
of which varies according to the investment 
experience of any separate account or accounts. 

f4ii5] Gmtrp A group life insurance certificates certificate 
unless the c er t i ficat e'; provide certificate provides 
for a stated or implied schedule of maximum gross 
premiums required in order to continue coverage in 
force for a period in excess of one year. 

(b) Calculation of the minimum valuation standard for 
policies with guaranteed nonlevel gross premiums or 
guaranteed nonlevel benefits i other than universal life 
policies), or both, shall be in accordance with 1 1 NCAC 1 IF 
.0404. 

(c) Calculation of the minimum valuation standard for 
flexible premium and fixed premium universal life insurance 
policies that contain provisions resulting in the ability of a 
policyholder to keep a policy in force over a secondary 
guarantee period of — more — than — five — years shall be in 
accordance with 1 1 NCAC 1 IF .0405. 

rdl — This S e ction b ecomes eff e ct i v e on January 1 of the 
calendar year immedia t ely fo l low i ng the ado p tion of similar 
requirements in rule o r statuto ry I'm in by states with an 
i on of at l e ast fi t ly- o ne perc e nt (51 9i ) of the 



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811 



TEMPORARY RULES 



t otal population of the United Stat e s of America, according to 
thern ost recent General Fed er al Ce n sus. 

History Note: Authority G.S. 58-2-40: 58-58-50(d); 58-58- 

50lk): 

Eff. January 1, 1998: 

Temporary Amendment Eff. January L_ 2000. 

.0402 DEFINITIONS 

As used in this Section: 

( 1 ) "Basic reserves" means reserves calculated in 
accordance with the principles of G.S. 58-58-50(d). 

(2) "Contract segmentation method" means the method 
of dividing the period from issue to mandatory 
expiration of a policy into successive segments, with 
the length of each segment being defined as the 
period from the end of the prior segment (from 
policy inception, for the first segment) to the end of 
the latest policy year as determined below. All 
calculations are made using the 1980 CSO valuation 
tables, as defined in 11 NCAC 1 IF .0402 (5) 11 
NCAC 1 IF .0402(6) (or any other valuation 
mortality table adopted by the NAIC after the 
effective date of this Section and adopted as a rule 
by the Commissioner for this purpose), and. if 
elected, the optional minimum mortality standard 
for deficiency reserves stipulated in 1 1 NCAC 1 IF 
.0403(b). 

The length of a particular contract segment shall be 
set equal to the minimum of the value t for which Gt 
is greater than Rt (if Gt never exceeds Rt the 
segment length is deemed to be the number of years 
from the beginning of the segment to the mandatory 
expiration date of the policy), where Gt and Rt are 
defined as follows: 
Gt= GPx+k+t 



GPx+k+t-1 
where: 

x = original issue age; 

k = the number of years from the date of issue to the 
beginning of the segment; 

t = 1 . 2. . . .; t is reset to 1 at the beginning of each 
segment; 

GPx+k+t-1 = Guaranteed gross premium per 
thousand of face a m ount amount, for year t of the 
segment, ignoring policy fees only if level for the 
premium paying period of the policy, policy, tor 
year t of the s e gm en t. 

Rt = qx+k+t 



qx+k+t- 1 
However. Rt may be increased or decreased by one 
percent in any policy year, at the company's option, 
but Rt shall not be less than one; 
where: 
x, k and t are as defined above, and 



(4)15} 



(5) (6} 



qx+k+t- 1 = valuation mortality rate for deficiency 
reserves in policy year k+t k+t. but using the 
mortality of 1 1 NCAC 1 IF .0403(b)(2) if 1 1 NCAC 
I IF .0403(h)(3) is elected for deficiency reserves. 
However, if GPx+k+t is greater than zero (0) and 
GPx+k+t-1 is equal to zero (0). Gt shall be deemed 
to be one thousand ( 1.000). If GPx+k+t and 
GPx+k+t- 1 are both equal to zero (0). Gt shall be 
deemed to he zero (0). 

(3) "Deficiency reserves" means the excess, if greater 
than zero, of minimum reserves calculated in 
accordance with the principles of G.S. 58-58-50(g) 
over basic reserves. 

(4) "Guaranteed gross premiums" means the premiums 
under a policy of life insurance that are guaranteed 
and determined at issue. 

"Maximum valuation interest rate" rates" means the 
interest rate rates specified in G.S. 58-58-50 (c)(4) 
G.S. 58-58-5 0(c)( 4)b that rs are to be used in 
determining the minimum standard for the valuation 
of life insurance policies. 

"1980 CSO valuation tables" means the 
Commissioners' 1980 Standard Ordinary Mortality 
Table ( 1980 CSO Table) without ten-year selection 
factors, incorporated into the 1980 amendments to 
the NAIC Standard Valuation Law. and variatio n 
variations of the 1980 CSO Table approved by the 
NAIC. such as the smoker and nonsmoker versions 
approved in December 1983. 

"Scheduled gross premium" means the smallest 
illustrated gross premium at issue for other than 
universal life insurance policies. For universal life 
insurance policies, scheduled gross premium means 
the smallest specified premium described in 1 1 
NCAC I IF .0405 (a)(3). if any. or else the 
minimum premium described in 11 NCAC 11F 
.0405(a)(4). 

"Segmented reserves" means reserves, calculated 
using segments produced by the contract 
segmentation method, equal to the present value of 
all future guaranteed benefits less the present value 
of all future net premiums to the mandatory 
expiration of a policy, where the net premiums 
within each segment are a uniform percentage of the 
respective guaranteed gross premiums within the 
segment, 
(a) The uniform percentage for each segment is 

such that, at the beginning of the segment, the 
present value of the net premiums within the 
segment equals: 
(i) The present value of the death benefits 

within the segment, plus 
(ii) The present value of any unusual 

guaranteed cash value (see 1 1 NCAC 

1 IF .0404 (do occurring at the end of 

the segment, less 



(6) £7} 



t=h\M 



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14:10 



TEMPORARY RULES 



mm 



mam 



l i n> 



(iii) Any unusual guaranteed cash value 

occurring at the start of the segment, 

plus 
(iv) For the first segment only, the excess 

of the Item (i) ove r he m (ii). Item (A) 

over Item (B), as follows: 

(A) A net level annual premium 
equal to the present value, at the 
date of issue, of the benefits 
provided for in the first segment 
after the first policy year, 
divided by the present value, at 
the date of issue, of an annuity 
of one per year payable on the 
first and each subsequent 
anniversary within the first 
segment on which a premium 
falls due. However, the net level 
annual premium shall not 
exceed the net level annual 
premium on the nineteen-year 
premium whole life plan of 
insurance of the same renewal 
year equivalent level amount at 
an age one year higher than the 
age at issue of the policy. 

(B) A net one-year term premium 
for the benefits provided for in 
the first policy year. 

(b) The length of each segment is determined by 
the contract segmentation method. 

(c) The interest rates used in the present value 
calculations for any policy may not exceed 
the maximum valuation interest rate, 
determined with a guarantee duration equal to 
the sum of the lengths of all segments of the 
policy. 

(d) For both basic reserves and deficiency 
reserves computed by the segmented method, 
present values rrrast shall include future 
benefits and net premiums in the current 
segment and in all subsequent segments. 

"Tabular cost of insurance" means the net single 
premium at the beginning of a policy year for one- 
year term insurance in the amount of the guaranteed 
death benefit in that policy year. 
"Ten-year select m o r tality factors" means the select 
factors adopted with the 1980 amendments to the 
NAIC Standard Valuation Law. 
"Unitary reserves" means the present value of all 
future guaranteed benefits less the present value of 
all future modified net premiums, where: 
(a) Guaranteed benefits and modified net 

premiums are considered to the mandatory 

expiration of the policy; 



(b) Modified net premiums are a uniform 
percentage of the respective guaranteed gross 
premiums, where the uniform percentage is 
such that, at issue, the present value of the net 
premiums equals the present value of all 
death benefits and pure endowments, plus the 
excess of Item (i) over Item (ii), as follows: 

(i) A net level annual premium equal to 
the present value, at the date of issue, 
of the benefits provided for after the 
first policy year, divided by the present 
value, at the date of issue, of an 
annuity of one per year payable on the 
first and each subsequent anniversary 
of the policy on which a premium falls 
due. However, the net level annual 
premium shall not exceed the net level 
annual premium on the nineteen-year 
premium whole life plan of insurance 
of the same renewal year equivalent 
level amount at an age one year higher 
than the age at issue of the policy, 
(ii) A net one-year term premium for the 
benefits provided for in the first policy 
year; and 

(c) The interest rates used in the present value 
calculations for any policy may not exceed 
the maximum valuation interest rate, 
determined with a guarantee duration equal to 
the length from issue to the mandatory 
expiration of the policy. 

ftT) ( 12) "Universal life insurance policy" means any 
individual life insurance policy under the provisions 
of which separately identified interest credits (other 
than in connection with dividend accumulations, 
premium deposit funds, or other supplementary 
accounts) and mortality or expense charges are 
made to the policy. 

History Note: Authority G.S. 58-2-40; 58-58-50(d); 58-58- 
50(k); 

Eff.Januon 1. 1998; 

Temporan Amendment Eff. January L. 2000. 

.0403 BASIC AND PREMIUM DEFICIENCY 
RESERVES 

(a) At the election of the company for any one or more 
specified plans of life insurance, the minimum mortality 
standard for basic reserves may be calculated using the 1980 
CSO valuation tables with select mortality factors (or any 
other valuation mortality table adopted by the NAIC after the 
effective date of this Section and adopted as a rule by the 
Commissioner for this purpose). If select mortality factors are 
elected, they may be: 



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TEMPORARY RULES 



( 1 ) The ten-year select mortality factors incorporated 
into the 1980 amendments to the NAIC Standard 
Valuation Law; 

(2) One h u n d r ed tit ty pe r cent ( 150 9? ) of the hase The 
select mortality factors of in the NAIC Model 
Regulation entitled "Valuation of Life Insurance 
Policies Model Regulation"; or 

f3} O n e hund r ed f i f t y p e r c en t ( 150 9 ? ) of t he hase select 

mo r tality factors o f the NAIC Model Regu l ation 

en ti tled "Valuat i on of L i fe Insurance Po l icies Model 

Regulation" for the first — 10 policy years; then 

linearl y graded from the resulting tenth year facto r 

to 100 percent at policy y ear 1 6; o r 

f+) {3} Any other table of select mortality factors adopted 

by the NAIC after the effective date of this Section 

and adopted as a rule by the Commissioner for the 

purpose of calculating basic reserves. 

(b) Deficiency reserves, if any, are calculated for each 

policy as the excess, if greater than zero, of the quantity A 

over the basic reserve. The quantity A is obtained by 

recalculating the basic reserve for the policy using guaranteed 

gross premiums instead of net premiums when the guaranteed 

gross premiums are less than the corresponding net premiums. 

At the election of the company for any one or more specified 

plans of insurance, the quantity A and the corresponding net 

premiums used in the determination of quantity A may be 

based upon the 19X0 CSO valuation tables with select 

mortality factors (or any other valuation mortality table 

adopted by the NAIC after the effective date of this Section 

and adopted as a rule by the Commissioner). If select mortality 

factors are elected, they may tie: be any of the following: 

( 1 ) The ten-year select mortality factors incorporated 
into the 1980 amendments to the NAIC Standard 
Valuation Law; 

(2) O ne hu n d r ed twe n ty percent ( 1 209? ) of th e base The 
select mortality factors of in the NAIC Model 
Regulation entitled "Valuation of Life Insurance 
Policies Model Regulation"; 

(3) One — h u n d r ed twenty - percent — ( 1 209? ) — of For 
durations m the first segment, X percent of the base 
select mortality factors of in the NAIC Model 
Regulation entitled "Valuation of Life Insurance 
Policies Model Regulation" for the first 10 pol i cy 
years, their l i n ea r l y graded f r o m t he r esult in g t en t h 
yea r factor to 100 pe r ce n t at pol i cy yea i — 16; or 
Regulation." subject to the following: 

(A) X may vary by polic\ year, policy form, 
underwriting classification, issue age, or any 
other policy factor expected to affect 
mortality experience; 
X shall not be less than 209? ; 
X shall not decrease m any successive policy 
years, 
X is such that, when using the valuation 






(!) The actuarial present value of future 
death benefits calculated using the 
mortality rales resulting from the 
application of X: 

(ii) The actuarial present value of future 
death benefits calculated using 
anticipated mortality experience 
without recognition of mortality 
improvement beyond the valuation 
date; 

(E) X is such that the mortality rates resulting 
from the application of X are at least as great 
as the anticipated mortality experience, 
without recognition of mortality improvement 
beyond the valuation date, m each of the first 
five years after the valuation date; 

(F) The appointed actuary shall increase X at any 
\aluaiion dale where U jj; ngcessap to 
continue to meet all requirements of this 
Rule; 

(G) The appointed actuary may decrease X at any 
valuation date as long as X does not decrease 
in any successive policy years and as long as 
it continues to meet ah the requirements of 
this Rule: and 

(H) The appointed actuary shall specifically take 

into account the adverse effect on expected 

mortality and lapsation of any anticipated or 

actual increase m gross premiums; 

(I) If X is less than 1 00'/? at any duration for any 

shall be 



(D) X is 



interest rate used for basic reserves. Item in rs 
greater than or equal to Item (ii ): 



policy, the following requirements 
met: 

l_n The appointed actuary shall annually 

prepare an actuarial opinion and 

memorandum lor the company in 

conformance with the requirements of 

1 1 NCAC 1 IF. 0300: and 

(ii) The appointed actuary shall annually 

opine for all policies subject to this 

Section as to whether the mortality 

rates resulting from the application of 

X meet the requirements of this Rule. 

This opinion shall be supported by an 

actuarial report, subject to appropriate 

Actuarial Standards of Practice 

promulgated by the Actuarial 

Standards Board of the American 

Academy of Actuaries. The X factors 

shall reflect anticipated future 

mortality . without recognition of 

mortality improvement beyond the 

valuation date, taking into account 

relevant emerging experience. 

(4) Any other table of select mortality factors adopted 

by the NAIC after the effective date of this Section 

and adopted as a rule by the Commissioner for the 

purpose of calculating deficiency reserves. 



814 



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TEMPORARY RULES 



(c) Notwithstanding Pa r agraphs (a) and (b) of this Rule, it" 
the length of the first s e gme n t as determined b y the contract 
segmenta ti o n method for th e basic r eserves is n o t g re at e r tha n 
5 years I safe harbor), then fo r the length of time m easu r ed 



Eff. January- 1, 1998; 
Amended Eff. January 1, 2000. 



i the r the un i tary method or the co n tract 



tr o m issue, lor eit 
s egmentation method, gross premiums need not be su b stituted 
for net p rem iums even if the g r oss premiums are less than the 
net premiums. Fo r subsequent pe ri ods, gross premiums must 
be substitut e d for net p r emiu m s if the gross p r e m iums a r e less 
than the correspond i ng net premiums. 

(d) For any policies f o r which the co mp a n y chooses to use 
the "safe harbo r ", the compa n y shall demonst r ate a n nually to 

t+rr» — rYimm i c: i i- i n^ i 1 — t-rr — ei il irn itl rrro — "\ — ^(.i t rmpnt — rrt — ." i rti i ;nM^l 



: nt of actuarial 



the Co m missio n er, by su b mitt in g a stat e ment ot actuary 
opinion sig n ed by the appointed actua r y, that the reserves held 
f or all suc h policies are adequate. 



ta+rry 



fel — In apply i ng percentag e s to the base select mortal i 
f ac t o r s : 

Hi No result shall be rounded: and 

f2i A n y result that exceeds 100 shall be set equal to 

TOOT 

if) (ej This Rule applies to both basic reserves and 
deficiency reserves. Any set of base select mortality factors 
may be used only for the first segment. However, if the first 
segment is less than 10 years, the appropriate 10-year select 
mortality facto r s factors, incorporated into the 1980 
amendments to the NAIC Standard Valuation Law, may be 
used thereafter through the tenth policy year from the date of 
issue. 

<tt) £d) In determining basic reserves or deficiency reserves, 
guaranteed gross premiums without policy fees may be used 
where the calculation involves the guaranteed gross premium, 
but only if the policy fee is a level dollar amount for after the 
entir e premium-paying per i od of the policy first policy year . In 
determining deficiency reserves, policy fees may be included 
in guaranteed gross premiums even if they are not included in 
the actual calculation of basic reserves. 

(e) Reserves for policies that have changes to guaranteed 
gross premiums, guaranteed benefits, guaranteed charges, or 
guaranteed credits that are unilaterally made by the insurer 
after issue and that are effective for more than one vear after 
the date of the change shall be the greatest of the following: 



LU 
(2) 



Reserves calculated ignoring the guarantee. 
Reserves assuming the guarantee was made at issue. 



Reserves assuming that the policy was issued on the 

dale of the guarantee, 
(f) The Commissioner may require that the insurer 
document the extent of the adequacy ol reserves for specified 
blocks, including but not limited to policies issued before the 
effective date of this Section. This documentation may 
include a demonstration of the extent to which aggregation 
with other non-specified blocks of business is relied upon m 
the formation of the appointed actuary opinion pursuant to and 
consistent with the requirements of 11 NCAC 1 IF .0300. 

History Note: Authority G.S. 58-2-40; 58-58-50(d); 58-58- 
50(k); 



.0404 CALCULATION OF 11 NCAC 11 .0401(b) 

(a) Basic reserves shall be calculated as the greater of the 
segmented reserves and the unitary reserves. Both the 
segmented reserves and the unitary reserves for any policy 
must shall use the same valuation mortality table and selection 
factors. At the option of the insurer, in calculating segmented 
reserves and net premiums, either of the following adjustments 
may be made: 

( 1 ) Treat the unitary reserve, if greater than zero, 
applicable at the end of each segment as a pure 
endowment: and subtract the unitary reserve, if 
greater than zero, applicable at the beginning of 
each segment from the present value of guaranteed 
life insurance and endowment benefits for each 
segment. 

(2) Treat the guaranteed cash surrender value, if greater 
than zero, applicable at the end of each segment as a 
pure endowment: and subtract the guaranteed cash 
surrender value, if greater than zero, applicable at 
the beginning of each segment trom the present 
value of guaranteed life insurance and endowment 
benefits for each segment. 

(b) Deficiency Reserves 

( 1 ) The deficiency reserve at any duration shall be 
calculated: 

(A) On a unitary basis if the corresponding basic 
reserve determined by 11 NCAC 11F 
.0404(a) is unitary; 

(B) On a segmented basis if the corresponding 
basic reserve determined by 11 NCAC 11F 
.0404(a) is segmented: or 

(C) On the segmented basis if the corresponding 
basic reserve determined by 11 NCAC 11F 
.0404(a) is equal to both the segmented 
reserve and the unitary reserve. 

(2) This Paragraph 1 1 NCAC 1 IF .0404(b) shall apply 
to any policy for which the guaranteed gross 
premium at any duration is less than the 
corresponding modified net premium calculated by 
the method used in determining the basic reserves, 
but using the minimum valuation standards of 
mortality (specified in 1 1 NCAC 1 IF .0403 (b)) and 
rate of interest. 

(3) Deficiency reserves, if any, shall be calculated for 
each policy as the excess if greater than zero, for the 
current and all remaining periods, of the quantity A 
over the basic reserve, where A is obtained as 
indicated in 1 1 NCAC 1 IF .0403(b). 

(4) For deficiency reserves determined on a segmented 
basis, the quantity A is determined using segment 
lengths equal to those determined for segmented 
basic reserves. 



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November 15, 1999 



815 



TEMPORARY RULES 



(c) Minimum Value - Basic reserves may not be less than 
the tabular cost of insurance for the balance of the policy year, 
if mean reserves are used. Basic reserves may not be less than 
the tabular cost of insurance for the balance of the current 
modal period or to the paid-to-date, if later, but not beyond the 
next policy anniversary, if mid-terminal reserves are used. The 
tabular cost of insurance must shall use the same valuation 
mortality ta ble , s elec t mortality fac t or table and interest rates 
as that those that are used for the calculation of both the 
segmented artel — the — unitary reserves. However, if select 
mortality factors are used, they shall be the 1 0-vear select 
factors incorporated into the 1980 amendments of the NAIC 
Standard Valuation Model Law. In no case may total reserves 
(including basic reserves, deficiency reserves and any reserves 
held for supplemental benefits that would expire upon contract 
termination) be less than the amount that the policyowner 
would receive (including the cash surrender value of the 
supplemental benefits, if any. referred to above), exclusive of 
any deduction for policy loans, upon termination of the policy. 

(d) Unusual Pattern of Guaranteed Cash Surrender Values 

( 1 ) For any policy with an unusual pattern of 
guaranteed cash surrender values, the reserves 
actually held prior to the first unusual guarantee 
guaranteed cash surrender value shall not be less 
than the reserves calculated by treating the first 
unusual guaranteed cash surrender value as a pure 
endowment and treating the policy as an n-year 
policy providing term insurance plus a pure 
endowment equal to the unusual cash surrender 
value, where n is the number of years from the date 
of issue to the date the unusual cash surrender value 
is scheduled. 

(2) The reserves actually held subsequent to an\ 
unusual guaranteed cash surrender value shall not be 
less than the reserves calculated by treating the 
policy as an n-year policy providing term insurance 
plus a pure endowment equal to the next unusual 
guaranteed cash surrender value, and treating any 
unusual guaranteed cash surrender value at the end 
of the prior segment as a net single premium, where 

(A) n is the number of years from the date of the 
last unusual guaranteed cash surrender value 
prior to the valuation date to the earlier of: 

(i) The date of the next unusual 
guaranteed cash surrender value, if 
any. that is scheduled after the 
valuation date; or 
(ii) The mandatory expiration date of the 
policy; and 

(B) The net premium for a given year during the 
n year period is equal to the product of the net 
to gross ratio and the respective gross 
premium; and 

(C) The net to gross ratio is equal to Item (i) 
divided by Item (ii) as follows: 

(i) The present value, at the beginning of 
the n-year period, of death benefits 



payable during the n-year period plus 

the present value, at the beginning of 

the n-year period, of the next unusual 

guaranteed cash surrender value, if 

any. minus the amount of the last 

unusual guaranteed cash surrender 

value, if any, scheduled at the 

beginning of the n-year period. 

(ii) The present value, at the beginning of 

the n-year period, of the scheduled 

gross premiums payable during the n- 

year period. 

(3) For the purposes of 11 NCAC 1 IF .0404 (d) a 

policy is considered to have an unusual pattern of 

guaranteed cash surrender values if any future 

guaranteed cash surrender value exceeds the prior 

year's guaranteed cashsurrender value by more than 

the sum of: 

(A) One hundred ten percent (110%) of the 
scheduled gross premium for that year; 

( B ) One hundred ten percent ( 1 1 0% ) of one year's 
accrued interest on the sum of the prior year's 
guaranteed cash surrender value and the 
scheduled gross premium using the 
nonforfeiture interest rate used for calculating 
policy guaranteed cash surrender values: and 

(C) Five percent (5%) of the first policy year 
surrender charge, if any. 

(e) Optional Exemption for Yearly Renewable Term 
Reinsurance - At the option of the company, the following 
approach for reserves on YRT reinsurance may be used: 

( 1 ) Calculate the valuation net premium for each future 
policy year as the tabular cost of insurance for that 
future year. 

(2) Basic reserves shall never be less than the tabular 
cost of insurance for the appropriate period, as 
defined in 1 1 NCAC 1 IF .0404 (c). 

(3) Deficiency reserves. 

(A) For each policy year, calculate the excess, if 
greater than zero, of the valuation net 
premium over the respective maximum 
guaranteed gross premium. 

(B) Deficiency reserves shall never be less than 
the sum of the present values, at the date of 
valuation, of the excesses determined in 
accordance with Part (A) of this 
Subparagraph. 

(4) For purposes of 11 NCAC 11F .0404 (e). the 
calculations use the maximum valuation interest rate 
and the 1980 CSO mortality tables with or without 
ten-year select mortality factors, or any other table 
adopted after the effective date of this Section by the 
NAIC and adopted as a rule by the Commissioner 
for this purpose. 

(5) A reinsurance agreement shall be considered YRT 
reinsurance for purposes of this Rule rfr if only the 
mortality risk is reinsured. 



816 



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TEMPORARY RULES 



(A) The rei nsur an ce premium ral e s (on bo t h t he 
i n itial — cur r ent — premi u m — seme — and — the 
guaranteed maximum premium scale) to r a n y 
given — year — are — independent — of both — the 
piemium rat e s and t h e p l a n of the o r iginal 
policy: and 
rBl Only the mortal i ty risk is reinsu re d. 
(6) It the assuming company chooses this optional 
exemption, the ceding company 's reinsurance 
reserve credit shall be limited to the amount of 
reserve held by the assuming company for the 
affected policies. 
(f) Optional Exemption for Attained-Age-Based Yearly 
Renewable Term Life Insurance Policies - At the option of the 
company, the following approach for reserves for attained- 
age-based YRT life insurance policies may be used: 

( 1 ) Calculate the valuation net premium for each future 
policy year as the tabular cost of insurance for that 
future year. 

(2) Basic reserves shall never be less than the tabular 
cost of insurance for the appropriate period, as 
defined in 1 1 NCAC 1 1F.0404 (c). 

(3) Deficiency reserves. 

(A) For each policy year, calculate the excess, if 
greater than zero, of the valuation net 
premium over the respective maximum 
guaranteed gross premium. 

(B) Deficiency reserves shall never be less than 
the sum of the present values, at the date of 
valuation, of the excesses determined in 
accordance with Part (A) of this 
Subparagraph. 

(4) For purposes of this Rule. 1 1 NCAC 1 IF .0404(f). 
the calculations use the maximum valuation interest 
rate and the 1980 CSO valuation tables with or 
without 10-year select mortality factors, or any other 
table adopted after the effective date of this Section 
by the NAIC and adopted as a rule by the 
Commissioner for this purpose. 

(5) A policy shall be considered an attained-age-based 
YRT life insurance policy for purposes of this Rule 
if: 

(A) The premium rates (on both the initial current 
premium scale and the guaranteed maximum 
premium scale) are based upon the attained 
age of the insured such that the rate for any 
given policy at a given attained age of the 
insured is independent of the year the policy 
was issued: and 

(B) The premium rates (on both the initial current 
premium scale and the guaranteed maximum 
premium scale) are the same as the premium 
rates for policies covering all insureds of the 
same sex, risk class, plan of insurance and 
attained age. 



(6) For policies that become attained-age-based YRT 
policies after an initial period of coverage, the 
approach of this Rule may be used after the initial 
period if: 

(A) The initial period is constant for all insureds 
of the same sex. risk class and plan of 
insurance; or 

(B) The initial period runs to a common attained 
age for all insureds of the same sex, risk class 
and plan of insurance; and 

(C) After the initial period of coverage, the policy 
meets the conditions of Subparagraph (f)(5) 
of this Rule. 

(7) If this election is made, this approach mtrst shall be 
applied in determining reserves for all attained-age- 
based YRT life insurance policies issued on or after 
the effective date of this Rule. 

(g) Exemption from Unitary Reserves for Certain n-Year 
Renewable Term Life Insurance Policies - Unitary basic 
reserves and unitary deficiency reserves need not be calculated 
for a policy if the following conditions are met: 

( 1 ) The policy consists of a series of n-year periods, 
including the first period and all renewal periods, 
where n is the same for each period, except that for 
the final renewal period, n may be truncated or 
extended to reach the expiry age, provided that this 
final renewal period b, less than 10 years and less 
than twice the si/e of the earlier n-\ear periods, and 
for each n -yca r period, the premium rates on both 
the initial current premium scale and the guaranteed 
maximum premium scale are level; 

(2) The guaranteed gross premiums in all n-year periods 
are not less than the corresponding net premiums 
based upon the 1980 CSO Table with or without the 
10-year select mortality factors: and 

(3) There are no cash surrender values in any policy 
year. 

(h) Exemption from Unitary Reserves for Certain Juvenile 
Policies - Unitary basic reserves and unitary deficiency 
reserves need not be calculated for a policy if the following 
conditions are met, based upon the initial current premium 
scale at issue: 

( 1 ) At issue, the insured is age 24 or younger: 

(2) Until the insured reaches the end of the juvenile 
period, which mtrst shall occur at or before age 25. 
the gross premiums and death benefits are level, and 
there are no cash surrender values; and 

(3) After the end of the juvenile period, gross premiums 
are level for the remainder of the premium paying 
period, and death benefits are level for the 
remainder of the life of the policy. 

History Now: Authority G.S. 58-2-40: 58-58-50(d); 58-58- 

50(k); 

Eff. January I. 1998; 

Temporary Amendment Eff. Januarx [^ 2000. 



14:10 



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November 15, 1999 



817 



TEMPORAR Y R ULES 



.0405 CALCULATION OF 11 NCAC 11 .0401(c) 

(a) General 

( 1 ) Policies with a secondary guarantee include: 

(A) A policy with a guarantee that the policy will 
remain in force at the original schedule of 
benefits ov er a pe r iod exceeding five years, 
benefits, subject only to the payment of 
specified premiums; 

(B) A policy in which the minimum premium at 
any future duration beyond the end of the 
fifth — policy — year is less than the 
corresponding one- year valuation premium, 
calculated using the maximum valuation 
interest rate and the 1980 CSO valuation 
tables with or without ten-year select 
mortality factors, or any other table adopted 
after the effective date of this Rufe Section by 
the NAIC and promulgated b y r egulation 
adopted as a rule by the Commissioner for 
this purpose; or 

(C) A policy with any combination of Parts (A) 
and (B). 

(2) A secondary guarantee period is the longest period 
for which the policy is guaranteed to remain in force 
subject only to a secondary guarantee. When a 
policy contains more than one secondary guarantee, 
the minimum reserve shall be the greatest of the 
respective minimum reserves at that valuation date 
of each unexpired secondary guarantee, ignoring all 
other secondary guarantees. Secondary guarantees 
that are unilaterally extended changed by the insurer 
after issue shall be considered to have been made at 
issue. Reserves described in Paragraphs (b) and (c) 
of this Rule shall be recalculated from issue to 
reflect the extensions, these changes. 

(3) Specified premiums mean the premiums specified in 
the policy, the payment of which guarantees that the 
policy will remain in force at the original schedule 
of benefits, but which otherwise would be 
insufficient to keep the policy in force in the 
absence of the guarantee if maximum mortality and 
expense charges and minimum interest credits were 
made and any applicable surrender charges were 
assessed. 

(4) For purposes of this Rule, the minimum premium 
for any policy year is the premium that, when paid 
into a policy with a zero account value at the 
beginning of the policy year, produces a zero 
account value at the end of the policy year. The 
minimum premium calculation mtnrt shall use the 
policy cost factors (including mortality charges, 
loads and expense charges) and the interest crediting 
rale, which are all guaranteed at issue. 

(5) The one-year valuation premium means the net one- 
year premium based upon the original schedule of 
benefits for a given policy year. The one-year 
valuation premiums for all policy years are 



calculated at issue. The select mortality factors 
defined in 1 1 NCAC 1 IF .0403 (a)(2). .0403 (a)(3), 
.0403 (a)(4), .0403 (b)(2), .0403(h)(3), and .0403 
(h)(4) may not be used to calculate the one-year 
valuation premiums. 
(6) The one-year valuation premium should reflect the 
frequency of fund processing, as well as the 
distribution of deaths assumption employed in the 
calculation of the monthly mortality charges to the 
fund. 

(b) Basic reserves for the secondary guarantees shall be the 
segmented reserves for the secondary guarantee period. In 
calculating the segments and the segmented reserves, the gross 
premiums shall be set equal to the specified premiums, if any, 
or otherwise to the minimum premiums, that keep the policy in 
force and the segments will be determined according to the 
contract segmentation method as defined in 11 NCAC 1 IF 
.0402(2). 

(c) Deficiency reserves, if any, for the secondary guarantees 
shall be calculated for the secondary guarantee period in the 
same manner as described in 11 NCAC 11F .0404 (b) with 
gross premiums set equal to the specified premiums, if any, or 
otherwise to the minimum premiums that keep the policy in 
force. 

(d) The minimum reserves during the secondary guarantee 
period are the greater of: 



ih 



(2) 



The basic reserves for the secondary guarantee plus 
the deficiency reserve, if any. for the secondary 
guarantees; or 

The minimum reserves required by other rules or 
regulations governing universal life plans. 



History Note: Authority G.S. 58-2-40; 58-58-50(d); 58-58- 

50(k); 

Eff. January 1, 1998; 

Temporary Amendment Eft. Jamum I, 2000. 

SECTION .0500 - NEW ANNUITY VALUATION 
MORTALITY TABLES 



.0501 DEFINITIONS 

As used in this Section: 
( 1 ) "1983 Table V " means that mortality table 
developed by the Society of Actuaries Committee to 
Recommend a New Mortality Basis for Individual 
Annuity Valuation and adopted as a recognized 
mortality table for annuities m June 1982 by the 
NAIC. 
1983 GAM Table" means that mortality table 



(2) 



£21 



developed by the Society of Actuaries Committee 
on Annuities and adopted as a recognized mortality 
table for annuities in December 1983 by the NAIC. 



'1994 GAR Table 



means that mortality table 
of Actuaries Group 
The 1994 



developed by the Society 

Annuity Valuation Table Task Force. 

GAR Table is included in the report on pages 865- 



818 



NORTH CAROLINA REGISTER 



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14:10 



TEMPORARY RULES 



14} 



919 of Volume XLVII of the Transactions of the 

Tabl 



Society of Actuaries ( 1 99? i. 
"Annuity 2000 Mortality 



means that 

mortality table deyelorjed In the Society of 
Actuaries Committee on Life Insurance Research. 
The Annuity 2000 Table is included in the report on 
pages 211-249 of Volume XLVII of the 
Transactions of the Society of Actuaries ( 1995). 



History Note: Authority G.S. 58-2-40; 58-58-50(k); 
Temporary Adoption Eft'. December L. 1999. 

.0502 INDIVIDUAL ANNUITY OR PURE 
ENDOWMENT CONTRACTS 

(a) Except as provided in Paragraphs (h) and to of this 
Rule, the 1983 Table "a" is recognized and approv cd as an 
individual annuity mortality table for valuation and, at the 
option of the company, may be used lor purposes of 
determining the minimum standard of valuation for any 
indiv idual annuity or pure endowment contract issued on or 
after April 19. 1979. 

(h) Except as provided in Paragraph (c) of this Rule, either 
the 1983 Table "a" or the Annuity 2000 Mortality Table shall 
be used for determining the minimum standard of valuation for 
anv individual annuity or pure endowment contract issued on 
or after January 1. 1987. 

(c) Except as provided in Paragraph (d) of this Rule, the 
Annuity 2000 Mortality Tabic shall be used for determining 
the minimum standard of valuation lor anv individual annuity 
or pure endowment contract issued on or alter January _L 
2000. 



(d) The 1983 Table "a" without projection is to be used for 
determining the minimum standards of valuation lor an 
individual annuity or pure endowment contract issued on or 
alter January J_. 2000. solely when the contract is based on life 
contingencies and is issued to fund periodic benefits arising 
from: 



( 1 ) Settlements of various forms of claims pertaining to 
court settlements or out of court settlements from 
ton actions: 

(2) Settlements involving similar actions such as 
worker's compensation claims: or 

(3) Settlements of long term disability claims where a 
temporary or life annuity has been issued in lieu of 
continuing disability payments. 

Histon Note: Authority G.S. 58-2-40: 58-58-501 k); 
Temporary- Adoption Eft. December L^ 1 999. 

.0503 GROUP ANNUITY OR PURE ENDOWMENT 
CONTRACTS 

(a) Except as provided in Paragraphs (b) and (c) of this 
Rule, the 1983 GAM Table, the 1983 Tabic "a" and the 1994 
GAR Table are recognized and approved as group annuity 
mortality tables for valuation and, at the option of the 
company, any one of these tables mv he used tor purposes of 



valuation for an annuity or pure endowment purchased on or 
after April 19. 1979. under a group annuity or pure 
endowment contract. 

(b) Except as provided in Paragraph (c) of this Rule, the 
1983 GAM Table or the 1994 GAR Table shall be used for 



determining the minimum standard of valuation for any 
annuity or pure endowment purchased on or after January _L 
1987. under a group annuity or pure endowment contract. 

(c) The 1994 GAR Table shall be used lor determining the 
minimum standard of valuation lor any annuity or pure 
endowment purchased on or alter January _L 2000. under a 
group annuity or pure endowment contract. 

History Note: Authority G.S. 58-2-40; 58-58-50(k); 
Temporary Adoption Eft. December L, 1999. 

.0504 APPLICATION OF THE 1994 GAR TABLE 

In using the 1994 GAR Table, the mortality rate for a person 

age \ in v ear ( 1994 + njis calculated as follows: 

q.' u "" a = q,' UUJ (l-AA ) n 

where the q. _s and AA .s are as specified in the 1994 GAR 
Table. 

History Note: Authority G.S 58-2-40; 58-58-50(k); 

Temporan Adoption Eft. December f 1999. 

%■• %. % % % % ip %. #. A- * % % * % *P * ~% % % 

Rule-making Agency: AT Department of Insurance 

Rule Citation: // NCAC 12 .0308. .1701-. 1703. .1707. .1709 

Effective Date: December 1. 1999 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G S. 58-2-40; 58-3-145; 58- 
16-30; 58-58-42 

Reason for Proposed Action: 

11 NCAC 12 .0308 - The 1999 General Assembly rewrote the 

law prohibiting the use of credit cards in the business of 

insurance requiring the repeal of this law. 

11 NCAC 12 .1701-.1703, .1707, .1709 - The 1999 Session of 

the NC General Assembly made technical changes to the 

viatical settlement in S.L. 1999-351 which requires 

amendments to these rules. 

Comment Procedures: Written comments for 11 NCAC 12 
.0308 may be sent to Ellen K. Sprenkel, NC Department of 
Insurance. PO Box 26387. Raleigh. NC 27611. and written 
comments for 11 NCAC 12 .1701-. 1703. .1707. .1709 may be 
sent to Rebecca Hill at the same address. 



14:10 



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November 15, 1999 



819 



TEMPORARY RULES 



CHAPTER 12 - LIFE AND HEALTH DIVISION 
SECTION .0300 GENERAL PROVISIONS 



.0308 



Ntr 



BANK CREDIT CARD FACILITY 
AVAILABLE FOR PREMIUM PAYMENT 



insure r may sol i cit insurance unde r the provisions of 
G.S. 58-61. 2 in suc h a way as to imply that the bank credit 



card facility is actually doing the soiicitati 
guidelines must be adhered to, by the insurer 



li mitation. The following 



Hi The colors used b y the b ank credit card facility may 

not be used in the solic i tation material. 

(2) The solic i tatio n mate ri al may refer to the bank credit 

card facility if it is operated by a bank corporation 
with pr i nc i pal domic i le ttt North Ca r olina, o n ly by 
making it one of the options to be u sed i n payi n g t h e 
premium. 

<-3i The bank credit card account number may not be 

shown on the address label of the i n dividual being 
solicited. 

(Hi With — r espect — to — the — p hysical — location — where 

solicitat i o n s — are — conducted. — sol i c i tatio n s — and 
disclosures — should — not — possess — a — capacity — or 
te n de n cy to mislead o r deceive as to the true ide n t i ty 
of the insurer o r c r eate the impression that a 
company othe r than the i n surer would have any 
responsibility fo r the financial o b ligation unde r a 
contract of insura n ce. 

History Note: Authority G.S. 58-61.2; 

Eff. February 1. 1976; 

Readopted Eff. September 26. 1978; 

Amended Eff. April 1, 1989; 

Temporary Repeal Eff'. December L 1999. 



SECTION .1700 - VIATICAL SETTLEMENTS 

.1701 DEFINITIONS 

(a) The definitions in G.S. 58-58-42(a) are incorporated 
into this Section by reference. 

(b) As used in this Section. "Division" means the Life and 
Health Division of the Department of Insurance. 

(c) As used in this Section: 

(1 ) "Broker" has the same meaning as "Viatical 
Settlement Broker " 

(2) "Provider" has the same meaning as "Viatical 
Settlement Provider." 

(3) "Representative" has the same meaning as "Viatical 
Settlement Representative," 

History Note: Authority G.S. 58-2-40; 58-58-42; 

Eff. February 1. 1996; 

Amended Eff. May 1. 1997; 

Temporary Amendment Eff'. December L_ 1999. 

.1702 VIATICAL SETTLEMENT PROVIDERS 



(a) An application for provider registration shall be filed 
with the Division. 

(b) Only those individuals named in the application may act 
as providers. 

(c) A provider shall submit with the application a plan of 
operation, including full particulars on the manner in which 
the provider proposes to operate in North Carolina and the 
type or types of insurance policies or contracts it intends to 
viaticate. 

(d) The provider's plan of operation shall be a narrative 
overview of the provider's business and shall include the 
following information: 

( 1 ) A certified copy of the provider's charter and by- 
laws, if a corporation, and a copy of the partnership 
agreement, if a partnership. 

(2) A chart showing the relationship of the provider to 
any parent, affiliated, or subsidiary corporation. 

(3) A detailed description of the provider's marketing 
techniques, including a description of training 
programs for those individuals who will have direct 
contact with viators. 

(4) A list of the names of provider's directors and 
management personnel, including job title and a 
brief description of the job duties. 

(5) A schedule listing the names of financial institutions 
with which the provider has escrow trust 
agreements, indicating the balance on each account 
and copies of all escrow and trust agreements. 

(6) A detailed description of what steps through which 
the viator will have access to funds, including the 
source that will make such funds available. 

(7) A schedule listing the names of all financing entities 
with which the provider participates in financing 
transactions. 

(8) A statement fullv disclosing the identities of aj] 
stockholders directly or indirectly holding ten 
percent ( 1 0% j or more of the provider, and all 
partners, directors, officers, and employees of the 
provider, depending on whether the provider is a 
partnership, corporation, or limited liability 
company. 

(e) A provider shall immediately notify the Division of any 
change in the address of the provider and of any change in the 
officers partners, officers, and directors of the provider, within 
10 business davs after the change. 

(f) Each provider shall notify the Division of any change in 
the plan of operation or financial information filed with its 
application within 10 business days after the change. 

(g) Each provider shall maintain net capital of at least one 
hundred thousand dollars ($100,000). or net capital plus a 
surety bond totaling at least one hundred thousand dollars 
($100,000). As used in this Rule, "net capital" means the 
excess of total assets over total liabilities as determined by 
generally accepted accounting principles. If any of a provider's 
assets have been depreciated, the amount of depreciation 
relative to any particular asset may be added to the depreciated 
cost of the assets to compute the total assets; provided 



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however, that the amount resulting after adding such 
depreciation shall not exceed the fair market value of the asset. 
For the purpose of calculating the appropriate amount of the 
surety bond that is required by this Rule, net capital shall be 
presumed to be zero (SO. 00) in situations in which a provider "s 
liabilities exceed the provider's assets. 

(h) A power of attorney designating the Commissioner as 
the provider's agent for service of legal process shall be filed 
by every provider. 

History Note: Authority G.S. 58-2-40; 58-16-30; 58-58-42; 

Eff. February 1, 1996; 

Amended Eff. Max 1. 1997; 

Temporary Amendment Eff. December L, [999. 

.1703 VIATICAL SETTLEMENT BROKERS AND 
REPRESENTATIVES 

(a) No person shall act as a broker or representative without 
first registering with the Agent Services Division. 

(b) The Commissioner shall suspend, revoke, or refuse to 
renew the registration of any broker or representative if the 
Commissioner finds that: 

( 1 ) There was any misrepresentation in the application 
for registration; 

(2) The broker or representative has been found guilt) 
of fraudulent or dishonest practices, has been found 
guilty of a felony or any misdemeanor of which 
criminal fraud is an element, or is otherwise shown 
to be financially irresponsible; or 

(3) The broker or representative has placed or attempted 
to place a contract with an unregistered provider. 

( c ) I n the a b sen c e of a w ri tten ag r ee m e n t between a viator 
an d a b r oke r maki n g th e b r oke r th e v i a t o r 's agent, a broker is 
pr esumed to be a n agent of the p r ovide r . In the absence of a 
written agreement between a viatical settlement representative 
and a viatical settlement broker naming the representative as 
the broker's agent, a representative is presumed to be an agent 
of the provider. 

(d) A broker shall not. w ithout the written agreement of the 
viator obtained before performing any services in connection 
with a viatical settlement, seek or obtain any compensation 
from the viator. 

(e) A power of attorney designating the Commissioner as 
the b r oker's agent of the broker or representative for service of 
legal process shall be filed by every br oke r: broker and 
representative. 

History Note: Authority G.S. 58-2-4(1: 58-16-30; 58-58-42; 

Eff. February 1. 1996; 

Amended Eff. January 1. 1998; 

Temporary Amendment Eff. December 1± 1999. 

.1707 SOLICITATION 

(a) A provider provider, representative, or broker shall not 
discriminate in the solicitation or making of contracts on the 
basis of race, age, sex. natural origin, creed, or religion. 



(b) A provider provider, representative, or broker shall not 
pay or offer to pay any finder's fee. commission, or other 
compensation to any viator's physician, attorney, accountant, 
or other person providing medical, legal, or financial planning 
services to the viator, or to an\ other person acting as an agent 
of the viator with respect to the viatical settlement. 

(c) Providers and brokers A provider, representative, or 
broker shall not solicit any investor who could influence the 
treatment of the illness of the viator whose coverage would be 
the subject of the investment. 

(d) Contacts for the purpose of determining the health status 
of a viator by a provider provider, representative, or broker 
after the contract has been signed shall be limited to once 
every three months for viators with a life expectancy of more 
than one year, and to no more than one per month for viators 
with a life expectancy of one year or less. The provide r 
provider, representative, or broker shall explain the procedure 
for these contacts before the contract is executed. 

History Note: Authority G.S. 58-2-40; 58-58-42; 
Eff. February 1. 1996; 

Temporan Amendment Eft. December f 1999. 

.1709 DISCLOSURE 

(a) Every provider shall deliver an information booklet to 
every \iator. Delivery of the booklet shall be acknowledged by 
the viator in the application form. The information booklet 
shall include the following 

( 1 ) How viatical settlements operate. 

(2) Possible alternatives to viatical settlements for 
persons with catastrophic or life-threatening 
illnesses, including accelerated death benefits 
offered by the issuer of the life insurance policy or 
certificate or loans secured by the life insurance 
policy or certificate. 

(3) Any tax consequences that may result from entering 
into a contract. 

(4) Any consequences of interruption or loss of 
assistance as provided by medical or public- 
assistance programs. 

(5) The viator's right to rescind a contract. 

(6) The identity ol any person who will receive any fee 
or compensation from the provider with respect to 
the contract and the amount and terms of such 
compensation. 

(7) The provider's complete name, main office address, 
and telephone number. 

(b) The provider shall disclose to the viator, either on the 
application or through the information booklet, that the 
proceeds payable to the viator may not be exempt from the 
viator's creditors, personal representatives, trustees in 
bankruptcy and receivers in state and federal courts. 

(c) The provider shall disclose to each viator, either on the 
application or through the information booklet, that the 
proceeds under a contract will be made in a lump sum. The 
disclosure shall state that the installment payments are not 



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821 



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permissible unless the provider is a licensed insurance 
company or the provider has effected the purchase of an 
annuity or similar financial instrument issued by a licensed 
insurance company. 

(d) The provider shall disclose on the application or through 
the information booklet that medical, financial, or other 
personal information obtained from the viator will not be 
disclosed to any other person without the viator's specific 
written consent. 

(e) The provider shall disclose on the application or through 
the information booklet the procedures available concerning 
the payment of death benefit proceeds for any insured other 
than the viator or for the payment of accidental death 
proceeds. 

(0 The provider, upon receipt of an application to viaticate 
and after determining the value to be offered in return for the 
assignment or transfer of the death benefit or ownership of a 
life insurance policy or certificate to the provider, shall deliver 
a proposal to the viator before the contract is to be signed. The 
proposal shall disclose the following information: 

( 1 ) Insurance contract death benefit in each of the next 
10 years if the insurance contract is not viaticated. 

(2) Amount of death benefit to be viaticated. 

(3) Policy cash value before deducting any loan. 

(4) Policy net cash value after deducting any loan. 

(5) Policy death benefit less net cash value. 

(6) Amount offered to viator. 

(7) Whether any supplemental benefit or benefits 
including the following benefits, are present, will be 
continued and. if so, the source of premium payment 
and the beneficiary of the proceeds of such 
supplemental benefit: benefit, and the provider's 
interest in each benefit: 

(A) Accidental death and dismemberment b e n efit. 
benefit, including the amount of the benefit. 

(B) Disability income. 

(C) Waiver of premium or of monthly deduction 
waiver. 

(D) Guaranteed insurability options. 

(E) Children or spouse coverage. 

( 8 ) Name of the insurer, and whether the insurer does or 
does not have an accelerated death benefit program 
for which the viator qualifies. 

i£j The information required by G.S. 58-58-42(gl ). 

(g) The proposal shall include a notice stating that a 
detailed description of how the payment amount was 
determined, including interest rate, expense factors, and the 
assumed life expectancy used in the determination, may be 
obtained by a written request made to the provider. 

(h) Upon a written request by the viator for a detailed 
description of how the payment amount was determined, the 
provider shall provide a detailed description stating the 
assumed life expectancy in months, the interest rate used to 
discount the amount at risk, the adjustments, if any, for future 
premiums, dividends and additional amounts, brokers or 
representative's compensation, and retention for other 
expenses, risk charge, and profit. 



(i) Every broker and representative shall provide a written 
statement to every viator before completion of any application 
to viaticate that describes how the broker and representative 
will be compensated. 

(j) The provider shall disclose to the viator, either on the 
application or in the information booklet, the provision in G.S. 
58-58-42(g)(7). 

(k) The provider shall disclose on the application or in the 
information booklet that the identity of the viator will not be 
disclosed except under the conditions set forth in G.S. 58-58- 
42(el )( 1 ) through {3} or as otherwise allowed or required by 
law. The provider shall provide the conditions in G.S. 58-58- 
42(el )( 1 ) through (3) to the viator. 

History Note: Authority G.S. 58-2-40; 58-58-42; 

Eff. February I, 1996; 

Temporary Amendment Eff. December 1^ 1999. 

Rule-making Agency: NC Department of Insurance 

Rule Citation: // NCAC 13 .0317-.0318, .0324, .0326. .0406 

Effective Date: December 1.1999 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 58-2-40; 58-3-145; 58- 
35-85 

Reason for Proposed Action: 

11 NCAC 13 .0317-.0318, .0324, .0326 - The 1999 Session of 
the NC General Assembly made many changes to the 
regulation of premium finance companies in S.L. 1999-157 
which requires the amendments and adoption of a new rule. 
11 NCAC 13 .0406 - The 1999 Session of the NC General 
Assembly rewrote the law prohibiting the use of credit cards in 
the business of insurance requiring the repeal of this rule. 

Comment Procedures: Written comments fur 11 NCAC 13 
.0317-.0318, .0324, .0326 may be sent to Fred Mohn. NC 
Department of Insurance. PO Box 26387, Raleigh, NC 27611, 
and written comments for 11 NCAC 13 .0406 may be sent to 
Ellen Sprenkel at the same address. 

CHAPTER 13 - SPECIAL SERVICES DIVISION 

SECTION .0300 - INSURANCE PREMIUM FINANCE 
COMPANIES 

.0317 TEN-DAY NOTICE 

The ten-day written notice of intent to cancel as described in 
G.S. 58-35-85(1) shall include the name and address of the 
premium finance company, the premium finance agreement 
number, the date the notice is mailed, delivered or sent, and 



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the amount of the installment in default. A copy of the ten-day 
notice, or a listing of delinquent insureds showing the same 
general information shall be sent to the insurance agent shown 
on the premium finance agreement at the same time notice is 
given to the insured. 

History Nate: Authority G.S. 58-2-40: 58-35-85 ( I ); 
Eff. February 1, 1976; 
Readopted Eff. January 1. 1978; 
Amended Eff. April 1. 1996: Max 1. 1989; 
Temporary Amendment Eff. December L_ 1999. 

.0318 NOTICE OF CANCELLATION 

The notice of cancellation as described in G. S. 58-35-85(2) 
shall be signed by the owner or an officer of the premium 
finance company (the owner or officer's facsimile signature 
may be used), shall have in bold print at its top the wording 
"Notice of Cancellation" and shall include the name and 
address of the insured; the name and address of the insurance 
company; the name and address of the premium finance 
company; the insurance company policy number; a 
certification that the ten-days notice of intent to cancel has 
been furnished to the insured; the authority under which the 
policy is to be cancelled; the date the notice of cancellation is 
mailed delivered or sent to the insured and to the insurance 
company; the effective date of cancellation; and a notice 
stating. "If automobile liability insurance is included, you are 
cautioned that financial responsibility is required to be 
maintained continuously throughout the registration period and 
that operation of a motor vehicle without maintaining such 
financial responsibility is a misdemeanor, the penalty for 
which is loss of registration plate, and fine or imprisonment, in 
accordance with the motor vehicle laws of the State of North 
Carolina as they may be amended from time to time". 

Histon Note: Authority G.S. 58-2-40: 58-35-85(2): 

Eff. February 1. 1976; 

Readopted Eff. January 1. 1978: 

Amended Eff. December 1. 1993: September 1. 1991: May 1. 

1989; July 1. 1986; 

Temporary Amendment Eff. December L. 1999. 

.0324 DISHONORED CHECKS 

Upon a cancellation when the i n su r e r has r ec ei ved n o t ice 



that the rettrr 



return premium nas n e en assig ne d to a p r e m ium 
finance company, the insurer shall, with in 6 days of suc h 



rrotr 



tice. forward to tne premium tinance company any gross 
un e arn ed premium. When the gross unear n ed prem i um is in 



excess of that amount due to the - 



to tne premium tinance company, 
the premium finance company sh al l , within te n b us in ess days, 
fo r ward such exc e ss a m ount to the i n su r ed by mail i ng it to the 
last k n own address of t h e i n su r ed. I n the event that th e If. for 
the premium being financed, an insurance agent holds a bad 
dishonored check given by the insured as down payme n t down 
payment, on the contract i n question, certification to the 
licensee premium finance company by the agent that he holds 



a bad dishonored check and that the agent agrees to hold the 
licensee premium finance company harmless shall entitle the 
lic e nsee premium finance company to make any remittance 
,due the insured to the agent and not to the insured, provided 
that no remittance of return premium due the insured shall be 
made to the agent in any amount in excess of the amount of 
the had dishonored check. A copy of the bad dishonored check 
shall be submitted to the lic ensee premium finance company 
by the agent at the time of certification. 

History Note: Authority G.S. 58-2-40; 58-35-85; 
Eff. January 1, 1978; 
Amended Eff. Max 1. 1989; July 1. 1986; 
Tcmporan Amendment Eff. December 1^ 1999. 

.0326 PREMIUM FINANCE AGREEMENT TYPE 
STANDARD 

The printed portion of each original premium finance 
agreement shall be m eight point type. An inadvertent change 
in the type size caused by facsimile or other electronic 
transmission, copying, or other means is not a violation of this 

Rule. 

History Note: Authority G.S. 58-2-40: 58-35-50; 
Temportin Adoption Eff. December f 1999. 

SECTION .0400 - MOTOR CLUBS 

.0406 USE OF CREDIT CARDS PROHIBITED 

No moto r c l ub lic e n se d in this state shall use. employ or 



avail i tselt ol t he facil i t ie s ot any person, farm or corporation 
engag e d i n the credit ca r d business (as defined in General 
Statute 58-01.2) t o solicit, accept payment upon, or negotiat e 
a n y moto r club m embe r ship if a contract of insurance is a part 
of the moto r club mem b ership. 

History Note: Authority G.S. 66-49. 13(5); 58-61.2; 
Eff. February!, 1976; 
Readopted Eff. January- 1. 1978; 
Temporary Repeal Eff. December 1± 1999. 



TITLE ISA -DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Rule-making Agency: Environmental Management 
Commission 

Rule Citation: ISA NCAC 2B .0230 

Effective Date: November 24. 1999 

Findings Reviewed by Julian Mann: Approved 

Authority for the rule-making: G.S. 143-214.1; 143-214.7; 
143-215; 143-215.3: 143-215.6A-C 



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Reason for Proposed Action: //; June 1998, the Federal 
Fourth Circuit Court of Appeals overturned the Tulloch rule of 
the U.S. Army Corps of Engineers which required Section 404 
Permits from the Corps (and thereby Section 401 Water 
Quality Certifications by the N.C. Division of Water Quality) 
for ditching activities which affected wetlands. Existing EMC 
rules (I5A NCAC 2B .0231 - Wetland Standards) were then 
examined by DWQ and Attorney General staff and determined 
to apply to projects which affected wetlands through draining. 
However the Clean Water Act lists several exemptions to 
Section 404(f)(1) and the Attorney General staff also 
determined that these exemptions were not covered by existing 
EMC rules. This regulatory action by the EMC is intended to 
reinstate the 404(f)(1) exemptions as provided in Clean Water 
Act and as relied upon by various groups for several decades. 
The reason for the temporary rule is to answer the unforseen 
consequence (the impact on 404(f)(1) exempt activities) due to 
the court ruling. DWQ staff worked with several interested 
parties during 1999 to obtain their input into the rule which 
resulted in a delay in EMC adoption of the rule until October 
1999. 

This rule lists several activities which are deemed to comply 
with wetland standards as long as the listed, appropriate Best 
Management Practices are followed. These exemptions 
mirror those in Section 404(f)(1) of the Clean Water Act which 
have been relied upon by the public for several decades. As 
long as the Best Management Practices are followed, the 
activity is in compliance with wetland standards and thereby 
not subject to enforcement activities by the N.C. Division of 
Water Quality. 

Comment Procedures: Comments may be submitted to John 
Dorney. DENR. Water Quality Lab., 1621 Mail Service 
Center. Raleigh. NC 27699-1621. Comments are sought by 
the N.C. Environmental Management Commission as to 
whether and, if so. how to require prior notification to DWQ 
by individuals and corporations when and where they propose 
to conduct an activity listed in this Rule. Notification could be 
for all activities listed in this Rule or only for a subset of these 
activities such as those which construct new ditches. 
Notification could include the landowner name, location of 
activity, extent of activity and verification by the landowner 
that appropriate Best Management Practices will be followed. 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER AND 
WETLAND STANDARDS 

SECTION .0200 - CLASSIFICATIONS AND 

WATER QUALITY STANDARDS APPLICABLE 

TO SURFACE WATERS AND 

WETLANDS OF NORTH CAROLINA 



i 



WITH WETLANDS STANDARDS 

(a) The following activities for which Section 404 permits 
are not required pursuant to Section 4(.)4(f')( 1 ) of the Clean 
Water Act and which are not recaptured into the permitting 
process pursuant to Section 404(f)(2) are deemed to he in 
compliance with wetland standards in 15A NCAC 2B .0231 
provided that thev comply with the most current versions of 
the federal regulations to implement Section 404 (f) (US 
Environmental Protection Agency and US Army Corps of 
Engineers) and the Sedimentation Pollution Control Act. G.S. 
113A. Article 4: 

normal silviculture and normal on-going farming 
and ranching, including activities such as plowing, 
seeding, cultivating, minor drainage and harvesting 
tor the production of lood. fiber and forest products. 
or upland soil and water conservation practices, 
provided that relevant silvicultural activities comply 
with U.S. Environmental Protection Agency and 
U.S. Army Corps of Engineers Memorandum to the 
Field entitled "Application of Best Management 
Practices to Mechanical Silvicultural Site 
Preparation Activities lor the Establishment of Pine 
Plantations in the Southeast". November 28. 1995; 
(2) maintenance, including emergency reconstruction of 
recently damaged parts, of currently serviceable 
structures such as dikes, dams, levees, groins, riprap, 
breakwaters, causeways, and bridge abutments or 
approaches, and transportation structures; 
construction and maintenance of farm or stock 



ill 



14) 



ponds or irrigation ditches. In addition, new pond 
construction in designated river basins with riparian 
buffer protection regulations also must comply with 
relevant portions of those regulations; 
maintenance of drainage ditches, provided that spoil 
is removed to high ground, placed on top of 
previous spoil, or placed parallel to one side or the 
other of the ditch within a distance of 20 feet and 
in a manner that minimizes 



spoils are placed 

damages to existing wetlands; 



and ditch 



.0230 



ACTIVITIES DEEMED TO COMPLY 



maintenance is no greater than the original depth, 
length and width of the ditch; 

(5) construction of temporary sedimentation basins on a 
construction site, provided that the basins are 
restored to natural grade and stabilized within two 
months of completion of the project and native 
woody vegetation is reestablished during the next 
appropriate planting season and maintained; 

(6) construction or maintenance of farm roads, forest 
roads, and temporary roads for moving mining 
equipment where such roads are constructed and 
maintained in accordance with best management 
practices, as defined in 40 CFR 232.2 (c) (6) (i-xv), 
to assure that flow and circulation patterns and 
chemical and biological characteristics o{ the 
navigable waters is not impaired, that the reach of 
navigable waters is not reduced, and that any 
adverse effects on the aquatic environment will be 
otherwise minimized. 



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(h) Where the Director determines, in consultation with the 
US Armv Corps of Engineers or the US Environmental 
Protection Agency, and considering existing or proiected 
environmental impact, that an activity is not exempt from 
permitting under Section 404( f ) and therefore, is not deemed 
to comply with the wetland standards in Rule .0231; or where 
the appropriate Best Management Practices are not 
implemented and maintained in accordance with Paragraph (a) 
of this Rule, the Director may require restoration of the 
wetlands as well as imposition of enforcement measures as 
authorized by GJL 143-215.6A (civil penalties), G.S. 143- 
215. 6B (criminal penalties) and G.S 143-215.6C (injunctive 
relief"). 

History Note: Authority G.S. 143-2 J 4.1; 143-214.7; 143- 

215; 143-215.3; I43-215.6A-C; 

Temporary Adoption Eff. November 24. 1999. 

Rule-making Agency: Environmental Management 

Commission 

Rule Citation: 15A NCAC 2Q .0102-.0I03, .0202. .0502- 
.0503, .0507-.0508 

Effective Date: December 1. 1999 

Findings Reviewed and Approved by: BeecherR. Gray 

Authority for the rule-making: G.S. 143-212.21 3; 143- 
215.3(a)(1); 143-215.65.66: 143-215. 107(a)(4). (a)(10); 143- 
215.108; 150B-2I 

Reason for Proposed Action: The Title V permitting rules 
are being modified in order to correct deficiencies previously 
identified by the EPA so that the State can gain final EPA 
approval of its Title V program. 

Comment Procedures: A public hearing on the permanent 
version of these rule amendments was held on October 26. 
1999 (See October 1. 1999 NC Register). The temporary 
version of these Rules does not differ from the permanent 
version. Comments were taken at the public hearing and were 
accepted through November 1 , 1999. 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2Q - AIR QUALITY PERMIT 
PROCEDURES 

SECTION .0100 - GENERAL PROVISIONS 

.0102 ACTIVITIES EXEMPTED FROM PERMIT 
REQUIREMENTS 



(a) This Rule does not apply to facilities required to have a 
permit under Section .0500 of this Subchapter. This Rule 
applies only to permits issued under Section .0300 of this 
Subchapter. 

fal(h) If a source is subject to any of the following rules, 
then the source is not exempted from permit requirements, and 
the exemptions in Paragraph (b) of this Rule do not apply; 
(1) new source performance standards under 15A 
NCAC 2D .0524 or 40 CFR Part 60. except: 

(A) 40 CFR Part 60, Subpart Dc. industrial, 
commercial, and institutional steam 
generating units; u n its located at a facility n ot 
required to be permitted u n de r Sectio n .0500 
of this Subchapter; 

(B) 40 CFR Part 60. Subpart Subparts K, Ka, or 
Kb, volatile organic liquid storage vessels; 
vessels located at a facil i ty n ot re quired to be 
p ermitted — u n de r — S e ctio n — .050 — of — this 
Subchapter; 

(C) 40 CFR Part 60, Subpart AAA, new 
residential wood heaters; or 

(D) 40 CFR Part 60, Subpart WWW. municipal 
solid waste landfills: landf i lls not required to 
be pei mined unde r Section .0 5 00 of this 



(2) national emission standards for hazardous air 
pollutants under 15A NCAC 2D .1 1 10 or 40 CFR 
Part 61, except asbestos demolition and renovation 
activities; 

(3) prevention of significant deterioration under 15A 
NCAC 2D .0530; 

(4) new source review under 15A NCAC 2D .0531 or 
.0532; 

(5) sources of volatile organic compounds subject to the 
requirements of 15A NCAC 2D .0900 that are 
located in Mecklenburg County in accordance with 
15A NCAC 2D .0902; 

(6) sources required to apply maximum achievable 
control technology (MACT) tor hazardous air 
pollutants under 15A NCAC 2D .1109, .1111. 
. 1 1 1 2. or 40 CFR Part 63 that are required to have a 
permit under Section .0500 of this Subchapter; or 

(7) sources at facilities subject to 15A NCAC 2D .1 100. 
(If a source does not emit a toxic air pollutant for 
which the facility at which it is located has been 
modeled, it shall be exempted from needing a permit 
if it qualifies for one of the exemptions in Paragraph 
(b) of this Rule). 

fb) £cj The following activities do not need a permit or 
permit modification under Section .0300 of this Subchapter; 
however, the Director may require the owner or operator of 
these activities to register them under 15A NCAC 2D .0200: 
(1) activities exempted because of category: category 
( These activit i es s h all not b e incl u ded on the pe r mit 
application o r i n the permit.) : 
(A) maintenance, upkeep, and replacement: 



14:10 



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November 15, 1999 



825 



TEMPORARY RULES 



(i) maintenance, structural changes, or 
repairs which do not change the 
capacity of such process, fuel-burning, 
refuse-burning, or control equipment, 
and do not involve any change in 
quality or nature or increase in quantity 
of emission of regulated air pollutants; 

(ii) housekeeping activities or building 
maintenance procedures, including 
painting buildings, resurfacing floors, 
roof repair, washing, portable vacuum 
cleaners, sweeping, use and associated 
storage of janitorial products, or 
insulation removal; 

(iii) use of office supplies, supplies to 
maintain copying equipment, or 
blueprint machines; machin e s, 

(i v ) use of fire fighting equipment; 

(v) paving parking lots; or 

(vi) replacement of existing equipment 
with equipment of the same size, type, 
and function that does not result in an 
increase to the actual or potential 
emission of regulated air pollutants and 
that does not affect the compliance 
status, and with replacement 
equipment that fits the description of 
the existing equipment in the permit, 
including the application, such that the 
replacement equipment can be 
operated under that permit without any 
changes in the permit; 

(B) air conditioning or ventilation: comfort air 
conditioning or comfort ventilating systems 
which do not transport, remove, or exhaust 
regulated air pollutants to the atmosphere; 

(C) laboratory activities: 

(i) bench-scale, on-site equipment used 
exclusively for chemical or physical 
analysis for quality control purposes, 
staff instruction, water or wastewater 
analyses, or n o n - p r o d u c t i o n 
environmental compliance 
assessments; 

(ii) bench-scale experimentation, chemical 
or physical analyses, training or 
instruction from not-for-profit, non- 
production educational laboratories; 

(iii) bench-scale experimentation, chemical 
or physical analyses, training or 
instruction from hospitals or health 
laboratories pursuant to the 
determination or diagnoses of illness; 
or 

(iv) research and development laboratory 
activities that are not required to be 
permitted under Section .0500 of this 



Subchapter provided the activity 
produces no commercial product or 
feedstock material; 

(D) storage tanks: 

(i) storage tanks used solely to store fuel 
oils, kerosene, diesel. crude oil. used 
motor oil, lubricants, cooling oils, 
natural gas or liquefied petroleum gas; 

(ii) storage tanks used to store gasoline for 
which there are no applicable 
requirements except Stage I controls 
under 15A NCAC 2D .0928; 

(iii) storage tanks used solely to store 
inorganic liquids; or 

(iv) storage tanks or vessels used for the 
temporary containment of materials 
resulting from an emergency response 
to an unanticipated release of 
hazardous materials; 

(E) combustion and heat transfer equipment: 

(i) space heaters burning distillate oil, 
kerosene, natural gas. or liquefied 
petroleum gas operating by direct heat 
transfer and used solely for comfort 
heat: 
(ii) residential wood stoves, heaters, or 

fireplaces: 
(iii) hot water heaters which are used for 
domestic purposes only and are not 
used to heat process water; 

(F) wastewater treatment processes: industrial 
wastewater treatment processes or municipal 
wastewater treatment processes for which 
there are no applicable requirements; 

(G) gasoline distribution: tr) gasoline service 
stations or gasoline dispensing facilities; 
facil i ti e s that a r e not required to be pei r nitted 
under Section .0500 of this Subchapter; or 
frr) gasoline — d i spe n sing — equipment — at 

facil i t i e s — required — to — be — permitted 
u n der Sect i o n .0500 of this Subchapter 
if t he equipment is used solely t o refue l 
facility equipment: 
(H) dispensing equipment: equipment used solely 
to dispense diesel fuel, kerosene, lubricants or 
cooling oils; 
(I) solvent recycling: portable solvent distillation 
systems used for on-site solvent recycling if: 
( i ) The portable solvent distillation system 
is not: 

(I ) owned by the facility, and 
(II) operated at the facility for more 
than seven consecutive days; 
and 
(ii) The material recycled rst is tH recycled 
at the site of origin, origin: 



826 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



TEMPORA RYR ULES 



rfrl the original — material — rs — rtorr= 
photochcmically — r eactiv e — m 
ac c ordance with 15A NCAC 2D 
. 05 18. M i scellaneous Volatile 
Organic Compound Emissions. 
and 

tffll all make up mate ri al is non- 
photochem i cally — r eact i v e — m 
accordance w i th 15A NCAC 2D 

firm 

.Uj 1 o. 

(J) processes: 

(i) small electric motor burn-out ovens 
with secondary combustion chambers 
or afterburners; 

(ii) small electric motor bake-on ovens; 

(iii) burn-off ovens for paint-line hangers 
with afterburners: 

(iv) hosiery knitting machines and 
associated lint screens, hosiery dryers 
and associated lint screens, and hosiery 
dyeing processes where bleach or 
solvent dyes are not used: 

(v) blade wood planers planing only green 
wood: 
(K) solid waste landfills: municipal solid waste 

landfills not required to be permitted under 

Section .0500 of this Subchapter (This Part 

does not apply to flares and other sources of 

combustion at solid waste landfills.); 
(L) miscellaneous: 

(i) motor vehicles, aircraft, marine 
vessels, locomotives, tractors or other 
self-propelled vehicles with internal 
combustion engines. 

(ii) non-self-propelled non-road engines, 
except generators, regulated by rules 
adopted under Title II of the federal 
Clean Air Act; 

(iii) equipment used for the preparation of 
food for direct on-site human 
consumption: 

(iv) a source whose emissions are regulated 
only under Section 1 12(r) or Title VI 
of the federal Clean Air Act; Act that 
i s n ot r equ ir ed to be permitted under 
Section .0500 of this Subchapter: 
(v) exit gases from in-line process 
analyzers; 

(vi) stacks or vents to prevent escape of 
sewer gases from domestic waste 
through plumbing traps; 

(vii) refrigeration equipment that is 
consistent with Section 601 through 
618 of Title VI (Stratospheric Ozone 
Protection) of the federal Clean Air 
Act. 40 CFR Part 82, and any other 



regulations promulgated by EPA under 
Title VI for stratospheric ozone 
protection, except those units used as 
or in conjunction with air pollution 
control equipment; 
(viii) equipment not vented to the outdoor 
atmosphere with the exception of 
equipment that emits volatile organic 
compounds; 
(ix) equipment that does not emit any 

regulated air pollutants: 

(x) facilities subject only to a requirement 

under 40 CFR Part 63 that a r e not 

requi r ed to be permitted u n der Section 

.0500 of this Subchapte r (This Subpart 

does not apply when a control device is 

used to meet a MACT or GACT 

emission standard.); 

(xi) sources for which there are no 

applicable requirements r equ ir e m e n ts 

a n d that a r e at a facility n ot r equi r ed to 

be pe rmi tted unde r Sect i o n .0500 of 

this Su bc hapte r : o r 

rrrr) sources — for — which — there — are — no 

applicable r equireme n ts and that a r e at 

a — f a c il i t y — r equi r ed — to — be — permitted 

u n de r Se cti on .0500 of this Subcha p te r 

f oll o wi n g the p r ocedu r es in Pa r ag r aph 

(c)ol this Rule: 

(xiii) (xii) animal operations not required to have 

control technology under 15A NCAC 

2D . 1 800 or — not — r equ i red — to — be 

permuted under Section .0 5 00 of t h is 

Subchapter. (If an animal operation is 

required to have control technology, it 

shall be required to have a permit 

under this Subchapter.) Subchapter). 

activities exempted because of size or production 

rate: rate (These activ i ties shall not b e i n cluded in 

the permit. If th e facility i s subject to t h e pei ii' iitting 

pr ocedu r es unde r Section .0500 of this Subc h apte r . 



these 



>rrarl — be — l isted — on — the — p erm i t 



activities — strati — Re — rrst 

appl i cation: otherwise, these activ i ties shall not be 

listed on the permit applicatio n .) : 

(A) storage tanks: 

(i) above-ground storage tanks with a 
storage capacity of no more than 1 100 
gallons storing organic liquids with a 
true vapor pressure of no more than 
10.8 pounds per square inch absolute 
at 70"F; or 
(ii) underground storage tanks with a 
storage capacity of no more than 2500 
gallons storing organic liquids with a 
true vapor pressure of no more than 
10.8 psi absolute at 70"F; 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



827 



TEMPORAR Y RULES 



(B) combustion and heat transfer equipment: 
e quipme n t located at a fac i lity not r equi r ed to 
be permitted unde r Sect i o n .0500 of th i s 



(i) fuel combustion equipment, except for 

internal combustion engines, firing 

exclusively kerosene. No. 1 fuel oil, 

No. 2 fuel oil. equivalent unadulterated 

fuels, or a mixture of these fuels or one 

or more of these fuels mixed of with 

natural gas or liquefied petroleum gas 

with a heat input of less than: 

(I) 10 million BTU Btu per hour 

for which construction. 

modification, or reconstruction 

commenced after June 9, 1989; 

or 

(II) 30 million BTU Btu per hour 

for which construction. 

modification, or reconstruction 

commenced before June 10. 

1989; 

(ii) fuel combustion equipment, except for 

internal combustion engines, firing 

exclusively natural gas or liquefied 

petroleum gas or a mixture of these 

fuels with a heat input rating less than 

65 million BTU Btu per hour: 

(iii) space heaters burning waste oil if: 

(I) The heater burns only oil that 
the owner or operator generates 
or used oil from do-it-yourself 
oil changers who generate used 
oil as household wastes: 
(II) The heater is designed to have a 
maximum capacity of not more 
than 500.000 Btu per hour: and 
(III) The combustion gases from the 
heater are vented to the ambient 
air; 
(iv) emergency use generators and other 
internal combustion engines not 
regulated by rules adopted under Title 
II of the federal Clean Air Act. except 
self-propelled vehicles, that have a 
rated capacity of no more than: 
(I) 310 kilowatts (electric) or 460 
horsepower for natural gas-fired 
engines. 
(II) 830 kilowatts (electric) or 1 150 
horsepower for liquefied 
petroleum gas-fired engines. 
(Ill) 270 kilowatts (electric) or 410 
horsepower for diesel-fired or 
kerosene-fired engines, or 



(C) 



(IV) 21 kilowatts (electric) or 31 
horsepower for gasoline-fired 
engines; 

(v) portable generators and other portable 
equipment with internal combustion 
engines not regulated by rules adopted 
under Title II of the federal Clean Air 
Act, except self-propelled vehicles, 
that operate at the facility no more than 
a combined 350 hours for any 365-day 
period provided the generators or 
engines have a rated capacity of no 
more than 750 kilowatt (electric) or 
1100 horsepower each and provided 
records are maintained to verify the 
hours of operation; 

(vi) peak shaving generators that produce 
no more than 325,000 kilowatt-hours 
of electrical energy for any 12-month 
period provided records are maintained 
to verify the energy production on a 
monthly basis and on a 12-month 
basis; 

gasoline distribution: bulk gasoline plants 

with an average daily throughput of less than 

4000 gallons: ga l lo n s that 



bn 



be perm i 
Subcha p te r 
(D) processes: 
(i) print 



tt e d under Section .0500 of this 



mi 



(iii) 



pr i nting, graphic arts operations, paint 
spray booths or other painting or 
coating operations without air 
pollution control devices (water wash 
and filters that are an integral part of 
the paint spray booth are not 
considered air pollution control 
devices) devices), and solvent cleaning 
operations located at a facility whose 
facility-wide actual emissions of: tH 
Volatile volatile organic compounds 
are less than five tons per year, year 
and tffl Pholoche i nically — re act i ve 
solvent em i ss i o n s unde r 15A NCAC 
2D .0518 a rc less tha n 30 pounds per 
day: provided — the — facili t y — rs — not 
r equir e d to be permitted und e r Section 
.0500 of this Subchapter; (Graphic arts 
operations, coating operations, an d 
solvent cleaning operations are defined 
in 15A NCAC 20 .0803): 

sawmills that saw no more than 
2.000.000 board feet per year provided 
only green wood is sawed; 
perchloroethylene dry cleaners that 
em i ts emit less than 13.000 pounds of 
perchloroethylene per year; 



828 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



TEMPORARY RULES 



(iv) electrostatic dry powder coating 
operations with filters or powder 
recovery systems including 
electrostatic dry powder coating 
operations equipped with curing ovens 
with a heal input of less than 
10.000.000 BTW Btu per hour; 
(E) miscellaneous: 

(i) any source whose emissions would not 
violate any applicable emissions 
standard and whose potential 
emissions of particulate, sulfur 
dioxide, nitrogen oxides, volatile 
organic compounds, and carbon 
monoxide before air pollution control 
devices, i.e.. potential uncontrolled 
emissions, are each no more than five 
tons per year and whose potential 
emissions of hazardous air pollutants 
are below their lessor quantity cutoff 
except: 

(I) storage tanks, 

(II) fuel combustion equipment. 
excluding — ftrd — c o mb ustio n 
equipment at fa c i l i ti es requi r ed 
to have a permit under Section 
.0500 of th i s Su b chapter, fi ri ng 
exclusively kerosene. No. 1 f u e l 
oil. No. 2 fuel oil. equivalent 
u n adulterated fuels, natural gas, 
liquefied petroleum gas, or a 
mixture of these fuels, 

(III) space heaters burning waste oil, 

(IV) generators, excluding 
emergency generators, or other 
non-self-propelled internal 
combustion engines, 

(V) bulk gasoline plants. 
(VI) printing, paint spray booths, or 
other painting or coating 
operations, 
(VII) sawmills. 

(VIII) perchloroethylene dry cleaners, 
or 
(IX) electrostatic dry powder coating 

operations, 
provided that the total potential 
emissions of particulate, sulfur 
dioxide, nitrogen oxides, volatile 
organic compounds, and carbon 
monoxide from the facility are each 
less than 40 tons per year and the total 
potential emissions of all hazardous air 
pollutants are below their lesser 
quantity cutoff emission rates or 



provided that the facility has an air 
quality permit; 

(ii) any facility whose actual emissions of 
particulate, sulfur dioxide, nitrogen 
oxides, volatile organic compounds, or 
carbon monoxide before air pollution 
control devices, i.e., uncontrolled 
emissions, are each less than five tons 
per year, whose potential emissions of 
all hazardous air pollutants are below 
their lesser quantity cutoff emission 
rate: rates, and which is n ot r equi r ed to 
have a peiniit unde r Sectio n .0500 of 
this Subchapter; 

(iii) any source that only emits hazardous 
air pollutants that are not also a 
particulate or a volatile organic 
compound and whose potential 
emissions of hazardous air pollutants 
are below their lesser quantity cutoff 
emission rates; or 

(iv) any incinerator covered under 
Subparagraph (c)(4) of 15A NCAC 2D 
.1201; 
(F) case-by-case exemption: (i) for activities 



located at facilit i es not 



located ai lac nines not requi r e 
permit — trrrdm — Sectio n — .0500 



d to have a 
— tfrrs 



Subchapter, activities that the applicant 
demonstrates to the satisfaction of the 
Director: 
ffl (jj to be negligible in their air quality 
impacts. 
ffHOO not to have any air pollution control 
device, and 
tfHi (iii) not to violate any applicable emission 
control standard when operating at 
maximum design capacity or 
maximum operating rate, whichever is 
greater, greater: rrr 
frr) fen — activities — lo cat e d — at — fac i l i ties 



-to — have — a — permit — under 



tOI 

required 

Section — .0500 — of this — Subchapter: 
activit i es — t+nrt — rtre — applicant 
demonstrates to the sat i sfact i on of t he 
Director: 
t+) to — be — negligi b le — m their air 

quality impacts. 
trl) not to have any air pollut i on 

co n trol device. 
ffHl not to violate any applicable 
emission co n trol standard when 
op e r at i ng at max i mum design 
capa c ity o r max i mum operati n g 
r ate, wh i chever is g r eater. 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



829 



TEMPORARY RULES 



(i¥) th e pote nt ial emissions of each 
c r iteria pollutant is less th a n l i ve 
to n s p e r year, a n d 
tVi the p ote n tial emiss i o n s of each 
hazardous a ir po l lutant i s l e ss 
tha n 1000 pou n ds p e r yea r . 
frl The D i recto r shall e xempt a sou r ce fo r w h ic h t he r e a r t - 
n o ap p l i cable re qu i re m e n ts at a fac i lity r e quir e d to have a 
pc-i m it u n de r S e ction .0500 of t hi s Subchapter from needing a 
permit if. 

Hi The Director finds that em i ssions from the source 

are not l i ke ly to caus e or contri b ute to any v i ola ti o n 

of a n ambient a ir quality sta n da r d u n de r Section 

1 5 A NCAC 2D .0400. o r 40 CFR Ta r t 50. a n d 

t2i Th e proposed permit exemption is noticed a l ong 

with the initial draf t permit o r the next draft permit 

revision requ i ring publ i c — n otice or d r aft permit 

re n e wal, wh i cheve r o cc u r s fir st, a n d i s sub j ect to 

public comment p r ocedur e s in Section .0500 of this 

Su b cha p te r. 

If du rin g the comment period EPA o r any othe i — p e r so n 

provides a sa ti sfacto r y explanat i o n t o t h e D i recto r of why the 



sou r ce should b e 



:lude the 



.t r ee stroma h e peu v utiea. th e Director snail inci 
sou r ce in the facility's perm i t: ot he rw i se, the Di re cto r shal l n o t 
in clude the sourc e in the facil i ty's p erm it . 

tth (ej Because an activity is exempted from being required 
to have a permit does not mean that the activity is exempted 
from any applicable requirement or that the owner or operator 
of the source is exempted from demonstrating compliance with 
any applicable requirement. 

rci (_dj Emissions from stationary source activities identified 
in Paragraph (b) of this Rule shall be included in determining 
compliance with the toxic air pollutant requirements under 
15A NCAC 2D .1100 or 2Q .0700 according to 15A NCAC 
2Q .0702 (exemptions from air toxic permitting). 

if) {e] The owner or operator of a facility or source 
claiming an exemption under Paragraph (b) of this Rule shall 
provide the Director documentation upon request that the 
facility or source is qualified for that exemption. 

History Note: Filed as a Temporary Adoption Eff. March 8, 

1994 for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner: 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(4); 

143-215.108; 

Eff. July 1. 1994: 

Amended Eff. April 1, 1999: July 1, 1998: July 1. 1997: 

November 1, 1996: 

Temporary Amendment Eff. December 1. 1999. 

.0103 DEFINITIONS 

For the purposes of this Subchapter, the definitions in G.S. 

143-212 and 143-213 and the following definitions apply: 

(1) "Air Pollutant" means an air pollution agent or 

combination of such agents, including any physical, 

chemical, biological, radioactive substance or matter 

which is emitted into or otherwise enters the 



(2) 



(3) 
(4) 



(5) 

(6) 

(7) 
(8) 



ambient air. Water vapor is not considered to be an 
air pollutant. 

"Allowable emissions" mean the maximum 
emissions allowed by the applicable rules contained 
in 15A NCAC 2D or by permit conditions if the 
permit limits emissions to a lesser amount. 
"Alter or change" means to make a modification. 
"Applicable requirements" means: 

(a) any requirement of Section .0500 of this 
Subchapter: 

(b) any standard or other requirement provided 
for in the implementation plan approved or 
promulgated by EPA through rulemaking 
under Title I of the federal Clean Air Act that 
implements the relevant requirements of the 
federal Clean Air Act including any revisions 
to 40 CFR Part 52; 

( c ) any term or condition of a construction permit 
for a facility covered under 15A NCAC 2D 
.0530. .0531. or .0532: 

(d) any standard or other requirement under 
Section 111 or 112 of the federal Clean Air 
Act, but not including the contents of any risk 
management plan required under Section 1 12 
of the federal Clean Air Act: 

(e) any standard or other requirement under Title 
IV; 

(f) any standard or other requirement governing 
solid waste incineration under Section 129 of 
the federal Clean Air Act; 

(g) any standard or other requirement under 
Section 183(e). 183(f). or 328 of the federal 
Clean Air Act: 

(h) any standard or requirement under Title VI of 

the federal Clean Air Act unless a permit for 

such requirement is not required under this 

Section; 

(i) any requirement under Section 504(b) or 

1 14(a)(3) of the federal Clean Air Act; or 
(j) any national ambient air quality standard or 
increment or visibility requirement under Part 
C of Title I of the federal Clean Air Act. but 
only as it would apply to temporary sources 
permitted pursuant to 504(e) of the federal 
Clean Air Act. 
"Applicant" means the person who is applying for 
an air quality permit from the Division. 
"Application package" means all elements or 
documents needed to make an application complete. 
"CFR" means Code of Federal Regulations. 
"Construction" means change in the method of 
operation or any physical change (including on-site 
fabrication, erection, installation, replacement, 
demolition, or modification of a source) that results 
in a change in emissions or affects the compliance 
status. 



830 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



TEMPORA RYR ULES 



(9) 

(10) 
(11) 



(12) 
(13) 

(14) 



(15) 

(16) 

(17) 
(18) 



(19) 



(20) 
(21) 



"Director" means the Director of the Division of Air 
Quality. 

"Division" means the Division of Air Quality. 
"EPA" means the United States Environmental 
Protection Agency or the Administrator of the 
Environmental Protection Agency. 
"EPA approves" means full approval, interim 
approval, or partial approval by EPA. 
"Equivalent unadulterated fuels" means used oils 
that have been refined such that the content of toxic 
additives or contaminants in the oil are no greater 
than those in unadulterated fossil fuels. 
"Facility" means all of the pollutant emitting 
activities, except transportation facilities as defined 
under Rule .0802 of this Subchapter, that are located 
on one or more adjacent properties under common 
control. 

"Federally enforceable" or "federal-enforceable" 
means enforceable by EPA. 

"Fuel combustion equipment" means any fuel 
burning source covered under 15A NCAC 2D 
.0503. .0504. .0536. or 40 CFR Part 60 Subpart D. 
Da. Db. or Dc. 

"Green wood" means wood with a moisture content 
of 1 8 percent or more. 

"Hazardous air pollutant" means any pollutant 
which has been listed pursuant to Section I 12(b) of 
the federal Clean Air Act. Pollutants listed only in 
15A NCAC 2D .1104 (Toxic Air Pollutant 
Guidelines), but not pursuant to Section 1 12(b), are 
not included in this definition. 
"Insignificant activities" means activities defined as 
insignificant activities because of category, or as 
insignificant activities because of si/e or production 
rate under Rule .0503 of this Subchapter, any 
activity exempted u n de r Rule .( H 02 of th i s Section. 
"Irrevocable contract" means a contract that cannot 
be revoked without substantial penalty. 
"Lesser quantity cutoff" means: 
(a) for a source subject to the requirements of 
Section 1 12(d) or (j) of the federal Clean Air 
Act, the level of emissions of hazardous air 
pollutants below which the following are not 
required: 

(i) maximum achievable control 
technology (MACT) or generally 
available control technology (GACT), 
including work practice standards, 
requirement under Section 112(d) of 
the federal Clean Air Act; 
(ii) substitute MACT or GACT adopted 
under Section 112(1) of the federal 
Clean Air Act; or 
(iii) a MACT standard established under 
Section 1 12(j) of the federal Clean Air 
Act: 



(22) 
(23) 

(24) 
(25) 



(26) 



(27) 
(28) 



(b) for modification of a source subject to. or 
may be subject to. the requirements of 
Section 1 12(g) of the federal Clean Air Act. 
the level of emissions of hazardous air 
pollutants below which MACT is not 
required to be applied under Section 112(g) 
of the federal Clean Air Act: or 

(c) for all other sources, potential emissions of 
each hazardous air pollutant below 10 tons 
per year and the aggregate potential emissions 
of all hazardous air pollutants below 25 tons 
per year. 

"Major facility" means a major source as defined 
under 40 CFR 70.2. 

"Modification" means any physical change or 
change in method of operation that results in a 
change in emissions or affects compliance status of 
the source or facility. 

"Owner or operator" means any person who owns, 
leases, operates, controls, or supervises a facility, 
source, or air pollution control equipment. 
"Peak shaving generator" means a generator that is 
located at a facility and is used only to serve that 
facility" son-site electrical load during peak demand 
periods for the purpose of reducing the cost of 
electricity; it does not generate electricity for resale. 
A peak shaving generator may also be used for 
emergency backup. 

"Permit" means the legally binding written 
document, including any revisions thereto, issued 
pursuant to G.S. 143-215.108 to the owner or 
operator of a facility or source that emits one or 
more air pollutants and that allows that facility or 
source to operate in compliance with G.S. 
143-215.108. This document specifies the 
requirements applicable to the facility or source and 
to the permittee. 

"Permittee" means the person who has received an 
air quality permit from the Division. 
"Potential emissions" means the rale of emissions of 
anv air pollutant that would occur at the facility's 
maximum capacity to emit any air pollutant under 
its physical and operational design. Any physical or 
operational limitation on the capacity of a facility to 
emit an air pollutant shall be treated as a part of its 
design if the limitation is federally enforceable. 
Such physical or operational limitations include air 
pollution control equipment and restrictions on 
hours of operation or on the type or amount of 
material combusted, stored, or processed. Potential 
emissions include fugitive emissions as specified in 
the definition of major source in 40 CFR 70.2. 
Potential emissions do not include a facility's 
secondary emissions such as those from motor 
vehicles associated with the facility and do not 
include emissions from insignificant activities 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



831 



TEMPORAR Y RULES 



(29) 
(30) 



because of category as defined under Rule .0503 
feted — m — Rtrre — . ()1 02(b)(l ) of this Section. 
Subchapter. If a rule in 40 CFR Part 63 uses a 
different methodology to calculate potential 
emissions, that methodology shall be used for 
sources and pollutants covered under that rule. 
"Portable generator" means a generator permanently 
mounted on a trailer or a frame with wheels. 
"Regulated air pollutant" means: 
(a) 



nitrogen oxides or any volatile organic 
compound as defined under 40 CFR 5 1 .100; 

(b) any pollutant for which there is an ambient air 
quality standard under 40 CFR Part 50; 

(c) any pollutant regulated under 15A NCAC 2D 
.0524, .1 1 10. or .1 1 1 1 or 40 CFR Part 60. 61, 
or 63; 

(d) any pollutant subject to a standard 
promulgated under Section 1 12 of the federal 
Clean Air Act or other requirements 
established under Section 112 of the federal 
Clean Air Act. including Section 1 12(g) (but 
only for the facility subject to Section 
112(g)(2) of the federal Clean Air Act), (j), or 
(r) of the federal Clean Air Act; or 

(e) any Class I or II substance listed under 
Section 602 of the federal Clean Air Act. 

(31) "Sawmill" means a place or operation where logs 
are sawed into lumber consisting of one or more of 
these activities: debarking, sawing, and sawdust 
handling. Activities that are not considered part of a 
sawmill include chipping, sanding, planing, routing, 
lathing, and drilling. 

(32) "Source" means any stationary article, machine, 
process equipment, or other contrivance, or 
combination thereof, from which air pollutants 
emanate or are emitted, either directly or indirectly. 

(?>?>) "Toxic air pollutant" means any of the carcinogens, 
chronic toxicants, acute systemic toxicants, or acute 
irritants that are listed in 15A NCAC 2D . 1 104. 

(34) "Transportation facility" means a complex source as 
defined at G.S. 143-213(22) that is subject to the 
requirements of 1 5 A NCAC 2D .0800. 

(35) "Unadulterated fossil fuel" means fuel oils, coal, 
natural gas, or liquefied petroleum gas to which no 
toxic additives have been added that could result in 
the emissions of a toxic air pollutant listed under 
15A NCAC 2D. 1104. 

History Note: Filed as a Temporary Adoption Eff. March 8, 

1994 for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner; 

Authority G.S. 143-21 5. 3(a)( 1 ); 143-212; 143-213; 

Eff. July 1. 1994; 

Amended Eff. April 1. 1999; July 1. 1998; July 1. 1996; 

Temporan Amendment Eff'. December 1^ 1999. 

SECTION .0200 - PERMIT FEES 



.0202 

For 
apply: 

(1 



(2) 



(3) 



DEFINITIONS 

the purposes of this Section, the following definitions 

"Actual emissions" means the actual rate of 
emissions in tons per year of any air pollutant 
emitted from the facility over the preceding calendar 
year. Actual emissions shall be calculated using the 
sources' actual operating hours, production rates, 
in-place control equipment, and types of materials 
processed, stored, or combusted during the 
preceding calendar year. Actual emissions include 
fugitive emissions as specified in the definition of 
major source in 40 CFR 70.2. For fee applicability 
and calculation purposes under Rule .0201 or .0203 
of this Section and emissions reporting purposes 
under Rule .0207 of this Section, actual emissions 
do not include emissions beyond the normal 
emissions during violations, malfunctions, start-ups, 
and shut-downs, do not include a facility's 
secondary emissions such as those from motor 
vehicles associated with the facility, and do not 
include emissions from insignificant activities 
because of category as defined under Rule .0503 
l i sted in R ul e .0102( b )( 1 ) of this Subchapter. 
"Title V facility" means a facility that : 

(a) has or shall have potential emissions of: 
( i ) 10 tons per year or more of at least one 

hazardous air pollutant; 
(ii) 25 tons per year or more of all 
hazardous air pollutants combined; or 
(iii) 100 tons per year or more of at least 
one regulated air pollutant except any 
pollutant that is regulated solely 
because it is subject to a regulation or 
standard under Section 112(r) of the 
federal Clean Air Act (accidental 
releases). If a facility has portions of 
the facility classified under different 
Major Groups as described in the 
Standard Industrial Classification 
Manual. 1987, the portions will be 
evaluated separately with regard to this 
threshold; or 

(b) is a facility required to have a permit under 
Section .0500 of this Subchapter because the 
facility was a major facility on or after the 
first compliance date of any requirement in 
40 CFR Part 61 or 63. 

"Synthetic minor facility" means a facility that 
would be a Title V facility except that the potential 
emissions are reduced below the thresholds in 
Paragraph (2) of this Rule by one or more physical 
or operational limitations on the capacity of the 
facility to emit an air pollutant. Such limitations 
must be enforceable by EPA and may include air 
pollution control equipment and restrictions on 



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hours of operation, the type or amount of material 
combusted, stored, or processed. 

(4) "General facility" means a facility obtaining a 
permit under Rule .0310 or .0509 of this 
Subchapter. 

(5) "Small facility" means a facility that is not a Title V 
facility, a synthetic minor facility, a general facility. 
nor solely a transportation facility. 

(6) "Before Title V program" means before complete, 
interim, or partial approval by EPA of the North 
Carolina program to implement Title V. 

(7) "After Title V program" means after complete, 
interim, or partial approval b_\ EPA of the North 
Carolina program to implement Title V. 

History Note: Filed as a Temporary Rule Eff. March 8, 

1994 for a period of 180 days or until the permanent rule is 

effective, whichever is sooner; 

Authority G.S. 143-215.3(a)(l),(]a),(lb),(ld); 150B-21.6; 

Eff. July 1, 1994; 

Amended Eff. July 1. 1996: 

Temporary Amendment Eff. December 1. 1999. 

SECTION .0500 - TITLE V PROCEDURES 

.0502 APPLICABILITY 

(a) Except as provided in Paragraph (b) of this Rule, the 
following facilities are required to obtain a permit under this 
Section: 

( 1 ) major facilities; 

(2) facilities with a source subject to 15A NCAC 2D 
.0524 or 40 CFR Part 60. except new residential 
wood heaters; 

(3) facilities with a source subject to 15A NCAC 2D 
. 1 1 1 or 40 CFR Part 6 1 , except asbestos demolition 
and renovation activities; 

(4) facilities with a source subject to 15A NCAC 2D 
.1111 or 40 CFR Part 63 or any other standard or 
other requirement under Section 1 1 2 of the federal 
Clean Air Act, except that a source is not required to 
obtain a permit solely because it is subject to rules 
or requirements under Section 1 12(r) of the federal 
Clean Air Act; 

(5) facilities to which 15A NCAC 2D .0517(2), .0528, 
.0529. or .0534 applies; 

(6) facilities with a source subject to Title IV or 40 CFR 
Part 72; or 

(7) facilities in a source category designated by EPA as 
subject to the requirements of 40 CFR Part 70. 

(b) This Section does not apply to minor facilities with 
sources subject to requirements of 15A NCAC 2D .0524. 
.1110. or .1111 or 40 CFR Part 60. 61. or 63 until EPA 
requires these facilities to have a permit under 40 CFR Part 70. 

fcl Research — and — develop m e n t — operat i ons located — at 

manufacturi n g facilities shall be co n side re d as a sepa r ate and 
di scr e te facility t or the proposes of determining wheth er su c h 



ope r ations constitute a major facility sub j ect to the p ermitt i ng 
r equi r e m e n ts of this Section. Except where su c h r esearch and 
development operatio n s by themselves constitute a ma j oi 
facility. — they — strafl — be — exempt e d — from — the — perm i tting 
r equi r ements of this Section. 

fd) (cj Once a facility is subject to this Section because of 
emissions of one pollutant, the owner or operator of that 
facility shall submit an application that includes all sources of 
all regulated air pollutants located at the facility except for 
insignificant activities exempted because of category, category 
under Rul e , 102 ( b)( 1 ) of this Subchapter. 

History Note: Filed as a Temporary Adoption Eff. March 8, 

1994 for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner; 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(10); 

143-215.108; 

Eff. Julx 1. 1994; 

Amended Eff. July I. 1996; 

Temporary Amendment Eff. December 1. 1999. 

.0503 DEFINITIONS 

For the purposes of this Section, the definitions in G.S. 
143-212 and 143-213 and the following definitions apply: 

( 1 ) "Affected States" means all states or local air 
pollution control agencies whose areas of 
jurisdiction are: 

(a) contiguous to North Carolina and located less 
than D=Q/12.5 from the facility, where: 

(i) Q = emissions of the pollutant emitted 

at the highest permitted rate in tons per 

year, and 
(ii) D = distance from the facility to the 

contiguous state or local air pollution 

control agency in miles 
unless the applicant can demonstrate to the 
satisfaction of the Director that the ambient 
impact in the contiguous states or local air 
pollution control agencies is less than the 
incremental ambient levels in 15A NCAC 2D 
.0532(0(5); or 

(b) within 50 miles of the permitted facility. 

(2) "Complete application" means an application that 
provides all information described under 40 CFR 
70.5(c) and such other information that is necessary 
to determine compliance with all applicable 
requirements. 

( 3 ) "Draft permit" means the version of a permit that the 
Division offers public participation under Rule 
.0521 of this Section or affected State review under 
Rule .0522 of this Section. 

(4) "Emissions allowable under the permit" means a 
federally enforceable permit term or condition 
determined at issuance to be an applicable 
requirement that establishes an emissions limit 
(including a work practice standard) or a federally 



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833 



TEMPO fL\R Y RULES 



(5) 



(6) 

mm 



mm 



enforceable emissions cap that the facility has 
assumed to avoid an applicable requirement to 
which the facility would otherwise be subject. 
"Final permit" means the version of a permit that the 
Director issues that has completed all review 
procedures required under this Section if the 
permittee does not file a petition under Article 3 of 
G.S. 150B. 

"Fugitive emissions" means those emissions which 
could not reasonably pass through a stack, chimney, 
vent, or other functionally-equivalent opening. 



H-H(IO) 



insigmticant — activities — means — arry — a c ti v it y 
e xempted under Rule .0102 of this Subchapte r . 
"Insignificant activities exempted because of 
category" m ea n s any activity exempted under 15 ' A 
NCAC 20 .0102(b)(1). means: 

(a) mobile sources; 

(b) air-conditioning units used for human 
comfort that are not subiect to applicable 
requirements under Title VI of the federal 
Clean Air Act and do not exhaust air 
pollutants into the ambient air from any 
manufacturing or other industrial process; 
ventilating units used for human comfort that 
do not exhaust air pollutants into the ambient 
air from any manufacturing or other industrial 
process; 

heating units used for human comfort lhat do 
not provide heat for any manufacturing or 
other industrial process; 
noncommercial food preparation: 
consumer use of office equipment and 
pioducts. 

janitorial services and consumer use of 
janitorial products; 

internal combustion engines used for 
landscaping purposes: 

new residential wood heaters subject to 40 
CFR Part 60, Subpart AAA: and 
demolition and renovation activities covered 
solely under 40 CFR Part 61 . Subpart M. 

"Insignificant activities exempted because of size or 
production rate" means any activity exempted under 
15A NCAC 20 .0102(b)(2). whose emissions would 
not violate any applicable emissions standard and 
whose potential emission of particulate, sulfur 
dioxide, nitrogen oxides, volatile organic 
compounds, and carbon monoxide before air 
pollution control devices, i.e., potential uncontrolled 
emissions, are each no more than five tons per year 
and whose potential emissions of hazardous air 
pollutants be tore air pollution control devices, are 
each below 1000 pounds per year. 
"Minor facility" means any facility that is not a 
major facility. 

"Operation" means the utilization of equipment that 
emits regulated pollutants. 



Id] 
(el 

in 
eg] 

m 

ill 

0) 



H~2l (11) "Permit renewal" means the process by which a 
permit is reissued at the end of its term. 

f~F3i (12) "Permit revision" means any permit modification 
under Rule .0515. .0516. or .0517 of this Section or 
any administrative permit amendment under Rule 
.0514 of this Section. 

c+4i ( 13) "Proposed permit" means the version of a permit 
that the Director proposes to issue and forwards to 
EPA for review under Rule .0522 of this Section. 

r+5i ( 14) "Relevant source" means only those sources that are 
subject to applicable requirements. 

r+6l (15) "Responsible official" means a responsible official 
as defined under 40 CFR 70.2. 

fFTj (16) "Section 502(b)(10) changes" means changes that 
contravene an express permit term or condition. 
Such changes do not include changes that would 
violate applicable requirements or contravene 
federally enforceable permit terms and conditions 
that are monitoring (including test methods), 
recordkeeping, reporting, or compliance certification 
requirements. 

fF8i ( 17) "Synthetic minor facility" means a facility that 
would otherwise be required to follow the 
procedures of this Section except that the potential 
to emit is restricted by one or more federally 
enforceable physical or operational limitations, 
including air pollution control equipment and 
restrictions on hours or operation, the type or 
amount of material combusted, stored, or processed, 
or similar parameters. 

f+9)H8] "Timely" means: 

(a) for initial permit submittals under Rule .0506 
of this Section, before the end of the time 
period specified for submittal of an 
application for the respective Standard 
Industrial Classification; 

(b) for a new facility, one year after commencing 
operation; 

(c) for renewal of a permit previously issued 
under this Section, nine months before the 
expiration of that permit; 

(d) for a minor modification under Rule .0515 of 
this Section, before commencing the 
modification; 

(e) for a significant modification under Rule 
.0516 of this Section where the change would 
not contravene or conflict with a condition in 
the existing permit. 12 months after 
commencing operation; 

(f) for reopening for cause under Rule .0517 of 
this Section, as specified by the Director in 
the request for additional information by the 
Director; 

(g) for requests for additional information, as 
specified by the Director in the request for 
additional information by the Director; or 



834 



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14:10 



TEMPORARY RULES 



(h) for modifications made under Section 1 12(j) 
of the federal Clean Air Act. 1 8 months after 
EPA fails to promulgate a standard for that 
category of source under Section 1 1 2 of the 
federal Clean Air Act by the date established 
pursuant to Section 112(e)(1) or (3) of the 
federal Clean Air Act. 

History Note: Filed as a Temporary Adoption Eff. March 8, 

1994 for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner; 

Authority G.S. 143-215. 3(a)(1); 143-212; 143-213; 

Eff. July 1. 1994; 

Amended Eff. July 1. 1996; 

Temporan Amendment Eff. December L_ 1999. 

.0507 APPLICATION 

(a) Except for: 

( 1 ) minor permit modifications covered under Rule 
.0515 of this Section, 

(2) significant modifications covered under Rule 
.0516(c) of this Section, or 

(3) permit applications submitted under Rule .0506 of 
this Section. 

the owner or operator of a source shall have one year from the 
date of beginning of operation of the source to file a complete 
application for a permit or permit revision. However, the 
owner or operator of the source shall not begin construction or 
operation until he has obtained a construction and operation 
permit pursuant to Rule .0501(c) or (d) and Rule .0504 of this 
Section. 

(b) The application shall include all the information 
described in 40 CFR 70.3(d) and 70.5(c). including a list of 
insignificant activities exe mp ted because of size or production 
rate; r ate unde r Rule .0102(b)(2) of this Su b chapter, but not 
including insignificant activities exempted because of 
category, catego r y u n de r Rul e ,0102(b)( 1 ) of this Su b c h apte r . 
The application form shall be certified by a responsible official 
for truth, accuracy, and completeness. In the application 
submitted pursuant to this Rule, the applicant may attach 
copies of applications submitted pursuant to Section .0400 of 
this Subchapter or 15A NCAC 2D .0530 or .0531. provided 
the information in those applications contains information 
required in this Section and is current, valid, and complete. 

(c) Application for a permit, permit revision, or permit 
renewal shall be made in accordance with Rule .0104 of this 
Subchapter on official forms of the Division and shall include 
plans and specifications giving all necessary data and 
information as required by the application form. Whenever the 
information provided on these forms does not describe the 
source or its air pollution abatement equipment to the extent 
necessary to evaluate the application, the Director may request 
that the applicant provide any other information that the 
Director considers necessary to evaluate the source and its air 
pollution abatement equipment. 



(d) Along with filing a complete application form, the 
applicant shall also file the following: 

( 1 ) for a new facility or an expansion of existing 
facility, a consistency determination in accordance 
with G.S. 143-215.108(0 that: 

(A) bears the date of receipt entered by the clerk 
of the local government, or 

(B) consists of a letter from the local government 
indicating that all zoning or subdivision 
ordinances are met by the facility; 

(2) for a new facility or modification of an existing 
facility, a written description of current and 
projected plans to reduce the emissions of air 
contaminants by source reduction and recycling in 
accordance with G.S. 143-2 15. 108(g); the 
description shall include: 

(A) for an existing facility, a summary of 
activities related to source reduction and 
recycling and a quantification of air emissions 
reduced and material recycled during the 
previous year and a summary of plans for 
further source reduction and recycling: or 

(B) for a new facility, a summary of activities 
related to and plans for source reduction and 
recycling; and 

(3) if required by the Director, information showing 
that: 

(A) The applicant is financially qualified to carry 
out the permitted activities, or 

(B) The applicant has substantially complied with 
(he air quality and emissions standards 
applicable to any activity in which the 
applicant has previously been engaged, and 
has been in substantial compliance with 
federal and state environmental laws and 
rules. 

(e) The applicant shall submit copies of the application 
package as follows: 

(1) for sources subject to the requirements of 15A 
NCAC 2D .0530. .0531. or .1200. six copies plus 
one additional copy for each affected state that the 
Director has to notify: 

(2) for sources not subject to the requirements of 15A 
NCAC 2D .0530. .0531. or .1200. four copies plus 
one additional copy for each affected state that the 
Director has to notify. 

The Director may at any time during the application process 
request additional copies of the complete application package 
from the applicant. 

(f) Any applicant who fails to submit any relevant facts or 
who has submitted incorrect information in a permit 
application shall, upon becoming aware of such failure or 
incorrect submittal, submit, as soon as possible, such 
supplementary facts or corrected information. In addition, an 
applicant shall provide additional information as necessary to 
address any requirements that become applicable to the source 



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835 



TEMPORAR Y RULES 



after the date he filed a complete application but prior to 
release of a draft permit. 

(g) The applicant shall submit the same number of copies of 
additional information as required for the application package. 

(h) The submittal of a complete permit application shall not 
affect the requirement that any facility have a preconstruction 
permit under 15A NCAC 2D .0530, .0531, or .0532 or under 
Section .0400 of this Subchapter. 

(i) The Director shall give priority to permit applications 
containing early reduction demonstrations under Section 
112(i)(5) of the federal Clean Air Act. The Director shall take 
final action on such permit applications as soon as practicable 
after receipt of the complete permit application. 

(j) With the exceptions specified in Rule .0203 (i) of this 
Subchapter, a non-refundable permit application processing 
fee shall accompany each application. The permit application 
processing fees are defined in Section .0200 of this 
Subchapter. Each permit or renewal application is incomplete 
until the permit application processing fee is received. 

(k) The applicant shall retain for the duration of the permit 
term one complete copy of the application package and any 
information submitted in support of the application package. 

History Note: Filed as a Temporary Adoption Eff. March 8, 

1994 for a period of 180 days or until the permanent rule 

becomes effective, whichever is sooner; 

Authority G.S. 143-215.3(a)(l); 143-215. 107(a)(10); 

143-215.108; 

Eff. July I. 1994; 

Amended Eff. July 1. 1997; July 1. 1996; February 1. 1995; 

Temporary Amendment Eff. December L. 1999. 

.0508 PERMIT CONTENT 

(a) The permit shall specify and reference the origin and 
authority for each term or condition and shall identify any 
differences in form as compared to the applicable requirement 
on which the term or condition is based. 

(b) The permit shall specify emission limitations and 
standards, including operational requirements and limitations, 
that assure compliance with all applicable requirements at the 
time of permit issuance. 

(c) Where an applicable requirement of the federal Clean 
Air Act is more stringent than an applicable requirement of 
rules promulgated pursuant to Title IV. both provisions shall 
be placed in the permit. The permit shall state that both 
provisions are enforceable by EPA. 

(d) The permit for sources using an alternative emission 
limit established under 15A NCAC 2D .0501(f) or 15A NCAC 
2D .0952 shall contain provisions to ensure that any resulting 
emissions limit has been demonstrated to be quantifiable, 
accountable, enforceable, and based on replicable procedures. 

(e) The expiration date contained in the permit shall be for a 
fixed term of five years for sources covered under Title IV and 
for a term of no more than five years from the date of issuance 
for all other sources including solid waste incineration units 
combusting municipal waste subject to standards under 
Section 129(e) of the federal Clean Air Act. 



(f) The permit shall contain monitoring and related 
recordkeeping and reporting requirements as specified in 40 
CFR 70.6(a)(3) and 70.6(c)( 1 ) including conditions requiring: 

( 1 ) the permittee to retain records of all required 
monitoring data and supporting information for a 
period of at least five years from the date of the 
monitoring sample, measurement, report, or 
application (Supporting information includes all 
calibration and maintenance records and all original 
strip-chart recordings for continuous monitoring 
information, and copies of all reports required by the 
permit.); 

(2) the permittee to submit reports of any required 
monitoring at least every six months. The permittee 
shall submit reports: 

(A) on official forms obtained from the Division 
at the address in Rule .0104 of this 
Subchapter, 

(B) in a manner as specified by a permit 
condition, or 

(C) on such other forms as approved by the 
Director; and 

(3) the permittee to report malfunctions, emergencies, 
and other upset conditions as prescribed in 15A 
NCAC 2D .0524, .0535. .1110, or .1111 and to 
report by the next business day deviations from 
permit requirements o r any excess emissions not 
covered under 15A NCAC 2D .0524. .0535. .1110, 
or .1111. The permittee shall report in writing to 
either the Director or Regional Supervisor all other 
deviations from permit requirements not covered 
under 15A NCAC 2D .0535 within two business 
days after becoming aware of the deviation. The 
permittee shall include the probable cause of such 
deviation and any corrective actions or preventive 
measures taken. All deviations from permit 
requirements shall be certified by a responsible 
official. 

Where appropriate, the Director may allow records to be 
maintained in computerized form. Monitori n g, r eco r dkeeping, 
and reporting shall n ot be requir e d for insign i ficant activ i tie s 
except to the exten t necessary to comply with Rule .0207 of 
this Subcha p te r . 



(g) I f the facility is required to develop and register a risk 
management plan pu r suant to Section 112 (r ) of the federal 
Clean Air Act, the pe r mit need only specify thai the owner o r 
ope r ato r of the facility will comply with the requi r ement to 
r eg i ste r such a pla n . The permit for facilities covered under 
15A NCAC 2D .2100. Risk Management Program, shall 
contain: 

a statement listing 15A NCAC 2D .2100 as an 



Hi 

ill 



applicable requirement; 

conditions that require the owner or operator of the 

facility to submit: 

(A) a compliance schedule for meeting the 
requirements of J5A NCAC 2D .2100 by the 
dates provided in I5A NCAC 2D .2101(a); or 



836 



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(B) as part of the compliance certification under 
Paragraph (t) of this Rule, a certification 
statement that the source js in compliance 
with aH requirements of 15A NCAC 2D 
.2100. including the registration and 
submission of the risk management plan. 
The content of the risk management plan need not itself he 
incorporated as a permit term or condition. 

(h) The permit shall contain a condition prohibiting 
emissions exceeding any allowances that a facility lawfully 
holds under Title IV. The permit shall not limit the number of 
allowances held by a permittee, but the permittee may not use 
allowances as a defense to noncompliance with any other 
applicable requirement. 

(i) The permit shall contain a severability clause so that 
various permit requirements will continue to be valid in the 
event of a challenge to any other portion of the permit. 

(j) The permit shall state that noncompliance with any 
condition of the permit is grounds for enforcement action; for 
permit termination, revocation and reissuance, or modification; 
or for denial of a permit renewal application. 

(k) The permit shall state that the permittee may not use as 
a defense in an enforcement action that it would have been 
necessary to halt or reduce the permitted activity in order to 
maintain compliance with the conditions of the permit. 

(1) The permit shall state that the Director may reopen, 
modify, revoke and reissue, or terminate the permit for reasons 
specified in Rule .0517 or .0519 of this Section. The permit 
shall state that the filing of a request by the permittee for a 
permit revision, revocation and reissuance, or termination, 
notification of planned changes, or anticipated noncompliance 
does not stay any permit condition. 

(m) The permit shall state that the permit does not convey 
any property rights of any sort, or any exclusive privileges. 

(n) The permit shall state that the permittee shall furnish to 
the Division, in a timely manner, any reasonable information 
that the Director may request in writing to determine whether 
cause exists for modifying, revoking and reissuing, or 
terminating the permit or to determine compliance with the 
permit. The permit shall state that the permittee shall furnish 
the Division copies of records required to be kept by the 
permit when such copies are requested by the Director. For 
information claimed to be confidential, the permittee may 
furnish such records directly to EPA along with a claim of 
confidentiality. 

(o) The permit shall contain a provision to ensure that the 
permittee pays fees required under Section .0200 of this 
Subchapter. 

(p) The permit shall state the terms and conditions for 

reasonably anticipated operating scenarios identified by the 

applicant in the application. These terms and conditions shall: 

(1) require the permittee, contemporaneously with 

making a change from one operating scenario to 

another, to record in a log at the permitted facility a 

record of the operating scenario under which it is 

operating; 



(2) extend the permit shield described in Rule .0512 of 
this Section to all terms and conditions under each 
such operating scenario; and 

(3) ensure that each operating scenario meets all 
applicable requirements of Subchapter 2D of this 
Chapter and of this Section. 

(q) The permit shall identify which terms and conditions are 
enforceable by: 

( 1 ) both EPA and the Division; 

(2) the Division only; 

(3) EPA only; and 

(4) citizens under the federal Clean Air Act. 

(r) The permit shall state that the permittee shall allow 
personnel of the Division to: 

( 1 ) enter the permittee's premises where the permitted 
facility is located or emissions-related activity is 
conducted, or where records are kept under the 
conditions of the permit; 

(2) have access to and copy, at reasonable times, any 
records that are required to be kept under the 
conditions of the permit; 

(3) inspect at reasonable times and using reasonable 
safety practices any source, equipment (including 
monitoring and air pollution control equipment), 
practices, or operations regulated or required under 
the permit; and 

(4) sample or monitor substances or parameters, using 
reasonable safety practices, for the purpose of 
assuring compliance with the permit or applicable 
requirements at reasonable times. 

(s) When a compliance schedule is required under 40 CFR 
70.5(c)(8) or under a rule contained in Subchapter 2D of this 
Chapter, the permit shall contain the compliance schedule and 
shall state that the permittee shall submit at least semiannually, 
or more frequently if specified in the applicable requirement, a 
progress report. The progress report shall contain: 

( 1 ) dates for achieving the activities, milestones, or 
compliance required in the compliance schedule, 
and dates when such activities, milestones, or 
compliance were achieved; and 

(2) an explanation of why an}' dates in the compliance 
schedule were not or will not he met, and any 
preventive or corrective measures adopted. 

(t) The permit shall contain requirements for compliance 
certification with the terms and conditions in the permit, 
including emissions limitations, standards, or work practices. 
The permit shall specify: 

(1) the frequency (not less than annually or more 
frequently as specified in the applicable 
requirements or by the Director) of submissions of 
compliance certifications: 

(2 ) a means for monitoring the compliance of the source 
with its emissions limitations, standards, and work 
practices; 

(3) a requirement that the compliance certification 
include: 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



837 



■«£itl 



TEMPORARY RULES 



(A) the identification of each term or condition of 
the permit that is the basis of the certification; 

(B) the compliance status as shown by 
monitoring data and other information 
reasonably available to the permittee; 

(C) whether compliance was continuous or 
intermittent; 

(D) the method(s) used for determining the 
compliance status of the source, currently and 
over the reporting period; and 

(E) such other facts as the permit may specify to 
determine the compliance status of the 
source; 

(4) that all compliance certifications be submitted to 
EPA as well as to the Division; and 

(5) such additional requirements as may be specified 
under Sections 114(a)(3) or 504(b) of the federal 
Clean Air Act. 

(u) The permit shall contain a condition that authorizes the 
permittee to make Section 502(b)(10) changes, off-permit 
changes, or emission trades in accordance with Rule .0523 of 
this Section. 

(v) The permit shall include all applicable requirements for 



all sources covered under the permit. 

(w) The permit shall specify the conditions under which the 
permit shall be reopened before the expiration of the permit. 

(x) If regulated, fugitive emissions shall be included in the 
permit in the same manner as stack emissions. 

(y) The permit shall contain a condition requiring annual 
reporting of actual emissions as required under Rule .0207 of 
this Subchapter. 

(z) The pe r mit s h all n ot inc l ude sources for which t he r e a re 
no applicable r equirements. 

rtnr) (z) The permit shall not include all sources including 
insignificant activities. 

fbbl (aa) The permit may contain such other provisions as 
the Director considers appropriate. 

History Note: Filed as a Temporary Rule Eff. March 8, 

1994 for a period of 180 days or until the permanent rule is 

effective, whichever is sooner; 

Authority G.S. 143-215.3(a)(l); 143-215.65; 143-215.66; 

143-215. 107(a)(10); 143-215.108; 

Eff. July 1, 1994; 

Amended Eff. July 1, 1996; 

Temporary Amendment Eff. December 1± 1999. 



838 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



APPROVED RULES 



This Section includes the Register Notice citation to Rules approved by the Rules Review Commission (RRC) at its meeting 
of September 30, 1999 pursuant to G.S. 150B-21. 17(a)(1) and reported to the Joint Legislative Administrative Procedure 
Oversight Committee pursuant to G.S. 150B-21 .16. The full text of rules are published below when the rules have been 
approved by RRC in a form different from that originally noticed in the Register or when no notice was required to be 
published in the Register. The rules published in full text are identified by an * in the listing of approved rules. Statutory 
Reference: G.S. 150B-21.17. 

These rules, unless otherwise noted, will become effective on the 31st legislative day of the 2000 Session of the General 
Assembly or a later date if specified by the agency unless a bill is introduced before the 31st legislative day that specifically 
disapproves the rule. If a bill to disapprove a rule is not ratified, the rule will become effective either on the day the bill 
receives an unfavorable final action or the day the General Assembly adjourns. Statutory reference: G.S. 150B-21 .3. 



APPROVED RULE CITATION 



REGISTER CITATION TO THE 
NOTICE OF TEXT 



1 1 


NCAC 


12 


.1025* 


12 


NCAC 


9 A 


.0103* 


12 


NCAC 


9B 


.0106* 


12 


NCAC 


9B 


.0107 


12 


NCAC 


9B 


.0113 


12 


NCAC 


9B 


.0201 -.0206* 


12 


NCAC 


9B 


.O226-.0228* 


12 


NCAC 


9B 


.0232-.0233* 


12 


NCAC 


9B 


.0305* 


12 


NCAC 


9C 


.0211 -.02 13* 


15A 


NCAC 


20 


.0702* 


15A 


NCAC 


4C 


.0107 


15A 


NCAC 


7H 


.1805* 


15A 


NCAC 


10F 


.0202* 


15A 


NCAC 


16A 


.1 106 


15A 


NCAC 


18A 


.1938* 


15A 


NCAC 


18A 


.1952* 


15A 


NCAC 


18A 


.1953 


15A 


NCAC 


18A 


.1954-. 1955* 


15A 


NCAC 


18A 


.1956* 


15A 


NCAC 


19A 


.0401* 


15A 


NCAC 


19A 


.0404 


15A 


NCAC 


19A 


.0406 


15A 


NCAC 


19A 


.0502* 


15A 


NCAC 


23 


.0201 -.0202 


15A 


NCAC 


23 


.0204 


15A 


NCAC 


23 


.0501 


15A 


NCAC 


27 


.0101* 


15A 


NCAC 


27 


.0110* 


15 A 


NCAC 


27 


.0201* 


15A 


NCAC 


27 


.0301* 


15A 


NCAC 


27 


.0410* 


15A 


NCAC 


27 


.0420* 


15A 


NCAC 


27 


.0430* 


15A 


NCAC 


27 


.0601* 


15A 


NCAC 


27 


.0801 


15A 


NCAC 


27 


.0810* 


15A 


NCAC 


27 


.0820* 


15A 


NCAC 


27 


.0840* 


21 


NCAC 


20 


.0101 



not required G.S. 150B-21.5(5) Eff. November 1, 1999 
not required G.S. 150B-21 .5(a)(6) Eff. August 1. 2000 
not required G.S. 150B-21. 5(a)(6) Eff. August 1.2000 



13:19 NCR 1611 


13:19 NCR 1611 


13:19 NCR 1611 


13:19 NCR 1611 


13:19 NCR 1611 


13:19 NCR 1611 


13:19 NCR 1611 


13:20 NCR 1735 


13:19 NCR 1651 


13: 16 NCR 1259 


not required G.S. 150B-2 1.5(b) 


14:01 NCR 12 


not required G.S. 150B-21.5(a) 


14:03 NCR 234 


14:03 NCR 234 


14:03 NCR 234 


not required G.S. 150B-2 1.5(a) 


13 


24 NCR 2004 


13 


24 NCR 2004 


13 


24 NCR 2004 


13 


24 NCR 2004 


14 


02 NCR 80 


14 


02 NCR 80 


14 


02 NCR 81 


13 


21 NCR 1789 


13 


21 NCR 1789 


13 


21 NCR 1789 


13 


21 NCR 1789 


13 


21 NCR 1790 


13 


2 1 NCR 1 790 


13 


21 NCR 1791 


13 


21 NCR 1792 


13 


21 NCR 1792 


13 


21 NCR 1792 


13 


21 NCR 1792 


13 


2 1 NCR 1 793 


13 


23 NCR 1942 



) Eff. November 1 , 1 999 



Eff. November 1. 1999 



Eft. November 1. 1999 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



839 



«s£l 



APPROVED RILES 



21 


NCAC 


20 


.0103-.0106* 


21 


NCAC 


20 


.0117* 


21 


NCAC 


20 


.0122-.0123* 


25 


NCAC 


IB 


.0414* 


25 


NCAC 


IB 


.0434* 


25 


NCAC 


IC 


.0214* 


25 


NCAC 


111 


.0602* 


25 


NCAC 


U 


.0503* 


25 


NCAC 


1.1 


.0506* 


25 


NCAC 


1.1 


.0603* 


25 


NCAC 


U 


.0603* 


26 


NCAC 


1 


.0101* 


26 


NCAC 


1 


.0104* 


26 


NCAC 


2C 


.0303* 


26 


NCAC 


4 


.0102* 


26 


NCAC 


4 


.0103* 


26 


NCAC 


4 


.0104* 


26 


NCAC 


4 


.0202* 



13 


23 NCR 1942 








13 


23 NCR 1942 








13 


23 NCR 1942 








13 


22 NCR 1850 








13 


22 NCR 1851 








13 


22 NCR 1851 








13 


09 NCR 775 








13 


09 NCR 777 








13 


22 NCR 1 852 








13 


09 NCR 778 








13:22 NCR 1850 








not required G.S. 150B-21. 5(a)(4) 


Eff. 


December 1 


1999 


not required G.S. 150B-21. 5(a)(4) 


Eff. 


December 1 


1999 


not required G.S. 150B-21. 5(a)(4) 


Eff 


December 1 


1999 


not required G.S. 150B-21.5(a)(3)(4) 


Eff. 


December 1 


1999 


not required G.S. 150B-21. 5(a)(4) 


Eff 


December 1 


1999 


noi required G.S. 150B-21. 5(a)(4) 


Eff. 


December 1 


1999 


not 


required G.S. 150B-21. 5(a)(4) 


Eff 


December 1 


1999 



TITLE 11 - DEPARTMENT OF INSURANCE 

CHAPTER 12 - LIFE AND HEALTH DIVISION 

SECTION .1000 - LONG-TERM CARE INSURANCE 

.1025 SUITABILITY 

(a) Each insurer, except an insurer issuing life insurance 
that accelerates benefits for long-term care, shall: 

( 1 ) Train its agents in the use of its suitability standards. 

(2) Maintain a copy of its suitability standards and 
make them available for inspection upon request by 
the Division. 

(b) To determine whether ihe applicant meets the standards 
developed by the insurer, the agent and insurer shall develop 
procedures that take the following into consideration: 

( 1 ) The ability to pay for the proposed coverage and 
other pertinent financial information related to the 
purchase of the coverage. 

(2) The applicants goals or needs with respect to long- 
term care and the advantages and disadvantages of 
insurance to meet these goals of needs. 

(3) The values, benefits, and costs of the applicants 
existing insurance, if any. when compared to the 
values, benefits, and costs of the recommended 
purchase or replacement. 

(c) The sale or dissemination of information obtained 
through the personal long-term care insurance worksheet 
referred to in G.S. 58-55-3 l(c)( 1 ) by an insurer or an agent to 
any person outside of the insurance company or insurance 
agency is prohibited. 

(d) Each year the insurer shall report to the Division the 
total number of applications received from residents of this 
Slate, the number of applicants who declined to provide 
information on the worksheet, the number of applicants who 



did not meet the suitability standards, the number of those who 
chose to confirm after receiving a suitability letter. 

(e) An insurer may issue a policy to an applicant that does 
not meet the financial suitability standards if the applicant 
signs a waiver acknowledging the suitability results. 

History Note: Authority G.S. 58-2-40(1); 58-55-30(a); 58- 

55-31; 

Eff. April I. 1999; 

Amended Eff November L 1999. 



TITLE 12 - DEPARTMENT OF JUSTICE 

CHAPTER 9 - CRIMINAL JUSTICE EDUCATION 
AND TRAINING STANDARDS 

SUBCHAPTER 9 A - CRIMINAL JUSTICE 

EDUCATION AND TRAINING STANDARDS 

COMMISSION 

SECTION .0100 - COMMISSION ORGANIZATION 
AND PROCEDURES 

.0103 DEFINITIONS 

The following definitions apply throughout this Chapter, 
except as modified in 12 NCAC 9A .0107 for the purpose of 
the Commission's rule-making and administrative hearing 
procedures: 



(1) 



(2) 



"Agency" or "Criminal Justice Agency" means those 
state and local agencies identified in G.S. 17C-2(b). 
"Alcohol Law Enforcement Agent" means a law 
enforcement officer appointed by the Secretary of 
Crime Control and Public Safety as authorized by 
G.S. 18B-500. 



840 



\ORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



APPROVED RILES 



(3) "Commission" means the North Carolina Criminal 
Justice Education and Training Standards 
Commission. 

(4) "Commission of an offense" means a finding by the 
North Carolina Criminal Justice Education and 
Training Standards Commission or an 
administrative body that a person performed the acts 
necessary to satisfy the elements of a specified 
criminal offense. 

(5) "Convicted" or "Conviction" means and includes, 
for purposes of this Chapter, the entry of: 

(a) a plea of guilty; 

(b) a verdict or finding of guilt by a jury, judge, 
magistrate, or other duly constituted, 
established, and recognized adjudicating 
body, tribunal, or official, either civilian or 
military; or 

(c) a plea of no contest, nolo contendere, or the 
equivalent. 

(6) "Correctional Officer" means any employee of the 
North Carolina Department of Correction who is 
responsible for the custody or treatment of inmates. 

(7) "Criminal Justice Officer! s)" means those officers 
identified in G.S. 17C-2(c) and further includes 
probation and parole intake officers: 
probation/parole officers-surveillance; 
probation/parole intensive officers; and. state parole 
case analysts. 

(8) "Criminal Justice System" means the whole of the 
State and local criminal justice agencies described in 
Item (1) of this Rule. 

(9; "Criminal Justice Training Points" means points 
earned toward the Criminal Justice Officers' 
Professional Certificate Program by successful 
completion of commission-approved criminal justice 
training courses. Twenty classroom hours of 
commission-approved criminal justice training 
equals one criminal justice training point. 

( 10) "Department Head" means the chief administrator of 
any criminal justice agency and specifically includes 
any chief of police or agency director. "Department 
Head" also includes a designee formally appointed 
in writing by the Department head. 

(11) "Director" means the Director of the Criminal 
Justice Standards Division of the North Carolina 
Department of Justice. 

(12) "Educational Points" means points earned toward 
the Professional Certificate Programs for studies 
satisfactorily completed for semester hour or quarter 
hour credit at an accredited institution of higher 
education. Each semester hour of college credit 
equals one educational point and each quarter hour 
of college credit equals two-thirds of an educational 
point. 

(13) "Enrolled" means that an individual is currently 
actively participating in an on-going formal 



presentation of a commission-accredited basic 
training course which has not been concluded on the 
day probationary certification expires. The term 
"currently actively participating" as used in this 
definition means: 

(a) for law enforcement officers, that the officer 
is then attending an approved course 
presentation averaging a minimum of twelve 
hours of instruction each week; and 

(b) for Youth Services and Department of 
Correction personnel, that the officer is then 
attending the last or final phase of the 
approved training course necessary for fully 
satisfying the total course completion 
requirements. 

( 14) "High School" means graduation from a high school 
that meets the compulsory attendance requirements 
in the jurisdiction in which the school is located. 

(15) "In-Service Training" means any and all training 
prescribed in Subchapter 9E Rule .0102 which must 
be satisfactorily completed by all certified law 
enforcement officers during each full calendar year 
of certification. 

(16) "Lateral Transfer" means the employment of a 
criminal justice officer, at any rank, by a criminal 
justice agency, based upon the officer's special 
qualifications or experience, without following the 
usual selection process established by the agency for 
basic officer positions. 

(17) "Law Enforcement Code of Ethics" means that code 
adopted by the Commission on September 19. 1973. 
which reads: 

As a law enforcement officer, my fundamental duty is to 
serve the community; to safeguard lives and property: to 
protect the innocent against deception, the weak against 
oppression or intimidation, and the peaceful against violence 
or disorder; and to respect the constitutional rights of all to 
liberty, equality, and justice. 

I will keep my private life unsullied as an example to all, and 
will behave in a manner that does not bring discredit to me or 
to my agency. I will maintain courageous calm in the face of 
danger, scorn, or ridicule: develop self-restraint; and be 
constantly mindful of the welfare of others. Honest in thought 
and deed both in my personal and official life, I will be 
exemplary in obeying the law and the regulations of my 
department. Whatever I see or hear of a confidential nature or 
that is confided to me in my official capacity will be kept ever 
secret unless revelation is necessary in the performance of my 
duty. 

I will never act officiously or permit personal feelings, 
prejudices, political beliefs, aspirations, animosities or 
friendships to influence my decisions. With no compromise 
for crime and with relentless prosecution of criminals. I will 
enforce the law courteously and appropriately without fear or 
favor, malice or ill will, never employing unnecessary force or 
violence and never accepting gratuities. 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



841 



APPROVED RULES 



I recognize the badge of my office as a symbol of public- 
faith, and I accept it as a public trust to be held so long as I am 
true to the ethics of the police service. I will never engage in 
acts or corruption or bribery, nor will I condone such acts by 
other police officers. I will cooperate with all legally 
authorized agencies and their representatives in the pursuit of 
justice. 

I know that I alone am responsible for my own standard of 
professional performance and will take every reasonable 
opportunity to enhance and improve my level of knowledge 
and competence. 

I will constantly strive to achieve these objectives and ideals, 
dedicating myself before God to my chosen profession. ..law 
enforcement. 

(18) "Law Enforcement Officer" means an appointee of a 
criminal justice agency or of the State or of any 
political subdivision of the State who, by virtue of 
his office, is empowered to make arrests for 
violations of the laws of this State. Specifically 
excluded from this title are sheriffs and their sworn 
appointees with arrest authority who are governed 
by the provisions of Chapter 17E of the General 
Statutes. 

(19) "Law Enforcement Training Points" means points 
earned toward the Law Enforcement Officers' 
Professional Certificate Program by successful 
completion of commission-approved law 
enforcement training courses. Twenty classroom 
hours of commission-approved law enforcement 
training equals one law enforcement training point. 

(20) "LIDAR" means a speed-measuring instrument that 
electronically computes, from transmitted infrared 
light pulses, the speed of a vehicle under 
observation. 

(21 ) "Local Confinement Personnel" means any officer, 
supervisor or administrator of a local confinement 
facility in North Carolina as defined in G.S. 
153A-217; any officer, supervisor or administrator 
of a county confinement facility in North Carolina 
as defined in G.S. 153A-218; or, any officer, 
supervisor or administrator of a district confinement 
facility in North Carolina as defined in G.S. 
153A-219. 

(22) "Misdemeanor" means those criminal offenses not 
classified under the laws, statutes, or ordinances as 
felonies. Misdemeanor offenses are classified by 
the Commission as follows: 

(a) "Class A Misdemeanor" means a 
misdemeanor committed or omitted in 
violation of any common law, duly enacted 
ordinance or criminal statute of this state 
which is not classified as a Class B 
Misdemeanor pursuant to Sub-item (22)(b) of 
this Rule. Class A Misdemeanor also 
includes any act committed or omitted in 
violation of any common law. duly enacted 
ordinance, criminal statute, or criminal traffic 



(b) 



code of any jurisdiction other than North 
Carolina, either civil or military, for which 
the maximum punishment allowable for the 
designated offense under the laws, statutes, or 
ordinances of the jurisdiction in which the 
offense occurred includes imprisonment for a 
term of not more than six months. 
Specifically excluded from this grouping of 
"Class A Misdemeanor" criminal offenses for 
jurisdictions other than North Carolina, are 
motor vehicle or traffic offenses designated 
as misdemeanors under the laws of other 
jurisdictions, or duly enacted ordinances of an 
authorized governmental entity with the 
exception of the offense of impaired driving 
which is expressly included herein as a Class 
A Misdemeanor if the offender could have 
been sentenced for a term of not more than 
six months. Also specifically included herein 
as a Class A Misdemeanor is the offense of 
impaired driving, if the offender was 
sentenced under punishment level three [G.S. 
20-179(1)], level four [G.S. 20-1790')], or 
level five [G.S. 20-1 79(k)]. Class A 
Misdemeanor shall also include acts 
committed or omitted in North Carolina prior 
to October 1, 1994 in violation of any 
common law, duly enacted ordinance or 
criminal statute, of this state for which the 
maximum punishment allowable for the 
designated offense included imprisonment for 
a term of not more than six months. 
"Class B Misdemeanor" means an act 
committed or omitted in violation of any 
common law. criminal statute, or criminal 
traffic code of this state which is classified as 
a Class B Misdemeanor as set forth in the 
Class B Misdemeanor manual as published 
by the North Carolina Department of Justice 
which is hereby incorporated by reference 
and shall automatically include any later 
amendments and editions of the incorporated 
material as provided by G.S. 150B-21.6. 
Copies of the publication may be obtained 
from the North Carolina Department of 
Justice, Post Office Box 629. Raleigh. North 
Carolina 27602. There is no cost per manual 
at the time of adoption of this Rule. Class B 
Misdemeanor also includes any act 
committed or omitted in violation of any 
common law, duly enacted ordinance, 
criminal statute, or criminal traffic code of 
any jurisdiction other than North Carolina, 
either civil or military, for which the 
maximum punishment allowable for the 
designated offense under the laws, statutes, or 
ordinances of the jurisdiction in which the 



842 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



APPROVED RULES 



offense occurred includes imprisonment for a 
term of more than six months but not more 
than two years. Specifically excluded from 
this grouping of "Class B Misdemeanor" 
criminal offenses for jurisdictions other than 
North Carolina, are motor vehicle or traffic 
offenses designated as being misdemeanors 
under the laws of other jurisdictions with the 
following exceptions: Class B Misdemeanor 
does expressly include, either first or 
subsequent offenses of driving while 
impaired if the maximum allowable 
punishment is for a term of more than six 
months but not more than two years, and 
driving while license permanently revoked or 
permanently suspended. "Class B 

Misdemeanor" shall also include acts 
committed or omitted in North Carolina prior 
to October 1, 1994 in violation of any 
common law. duly enacted ordinance, 
criminal statute, or criminal traffic code of 
this state for which the maximum punishment 
allowable for the designated offense included 
imprisonment for a term of more than six 
months but not more than two years. 

(23) "Parole Case Analyst" means an employee of the 
North Carolina Department of Correction who 
works under the supervision of the North Carolina 
Parole Commission, whose duties include analyzing 
and processing cases under consideration for parole, 
preparing and presenting parole recommendations, 
analyzing and processing executive clemency 
matters and interviewing inmates. 

(24) "Pilot Courses" means those courses developed 
consistent with the curriculum development policy 
adopted by the Commission on May 30. 1 986. This 
policy shall be administered by the Education and 
Training Committee of the Commission consistent 
with 12NCAC9C.0404. 

(25) "Probation/Parole Officer" means an employee of 
the Division of Adult Probation and Parole whose 
duties include supervising, evaluating, treating, or 
instructing offenders placed on probation or parole 
or assigned to any other community-based program 
operated by the Division of Adult Probation and 
Parole. 

(26) "Probation/Parole Intake Officer" means an 
employee of the Division of Adult Probation and 
Parole, other than a regular Probation/Parole officer, 
whose duties include conducting, preparing, or 
delivering investigations, reports, and 
recommendations, either before or after sentencing, 
upon the request or referral of the court, the Parole 
Commission, or the Director of the Division of 
Adult Probation and Parole. 



(27) "Probation/Parole Intensive Officer" means an 
employee of the Division of Adult Probation and 
Parole other than a regular probation/parole officer, 
probation/parole intake officer, and probation/parole 
officer-surveillance who is duly sworn, empowered 
with the authority of arrest and is an authorized 
representative of the courts of North Carolina and 
the Department of Correction. Division of Adult 
Probation and Parole, whose duties include 
supervising, investigating, reporting, counseling, 
treating, and surveillance of serious offenders in an 
intensive probation and parole program operated by 
the Division of Adult Probation and Parole who 
serves as the lead officer in such a unit. 

(28) "Probation/Parole Officer - Surveillance" means an 
employee of the Division of Adult Probation and 
Parole other than a regular probation/parole and a 
probation/parole intake officer who is duly sworn, 
empowered with the authority of arrest and is an 
authorized representative of the courts of North 
Carolina and the Department of Correction, Division 
of Adult Probation and Parole whose duties include 
supervising, investigating, reporting, and 
surveillance of serious offenders in an intensive 
probation and parole program operated by the 
Division of Adult Probation and Parole who is 
trained in community corrections and law 
enforcement techniques. 

(29) "Qualified Assistant" means an additional staff 
person designated as such by the School Director to 
assist in the administration of a course when an 
accredited institution or agency assigns additional 
responsibilities to the certified School Director 
during the planning, development, and 
implementation of an accredited course. 

(30) "Radar" means a speed-measuring instrument that 
transmits microwave energy in the 10.500 to 10,550 
MHZ frequency (X) band or transmits microwave 
energy in the 24.050 to 24.250 MHZ frequency (K) 
band and either of which operates in the stationary 
and/or moving mode. "Radar" further means a 
speed-measuring instrument that transmits 
microwave energy in the 33.400 to 36.000 MHZ 
(Ka) band and operates in either the stationary or 
moving mode. 

(31 ) "Resident" means any youth committed to a facility 
operated by the North Carolina Division of Youth 
Services. 

(32) "School" or "criminal justice school" means an 
institution, college, university, academy, or agency 
which offers criminal justice, law enforcement, 
penal, correctional, or traffic control and 
enforcement training for criminal justice officers or 
law enforcement officers. "School" includes the 
criminal justice training course curriculum, 
instructors, and facilities. 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



843 



*&& 



APPROVED RULES 



(33) "School Director" means the person designated by 
the sponsoring institution or agency to administer 
the criminal justice school. 

(34) "Speed-Measuring Instruments" (SMI) means those 
devices or systems, including radar time-distance. 
and LIDAR. formally approved and recognized 
under authority of G.S. 17C-6(a)(13) for use in 
North Carolina in determining the speed of a vehicle 
under observation and particularly includes all 
named devices or systems as specifically referenced 
in the approved list of 12 NCAC 9C .0601. 

(35) "Standards Division" means the Criminal Justice 
Standards Division of the North Carolina 
Department of Justice. 

(36) "Time-Distance" means a speed-measuring 
instrument that electronically computes, from 
measurements of time and distance, the average 
speed of a vehicle under observation. 

(37) "State Youth Services Officer" means an employee 
of the North Carolina Division of Youth Services 
whose duties include the evaluation, treatment, 
instruction, or supervision of juveniles committed to 
that agency. 

History Note: Filed as a Temporary Amendment Eff. 

October 1 . 1994 for a period of 180 days to expire on April I . 

1995: 

Filed as a Temporary Amendment Eff. December 14, 1983 for 

a period of 120 days to expire on April 12, 1984: 

Authority G.S. I7C-2: 17C-6: I7C-10: 153A-217; 

Eff. January I, 1981: 

Amended Eff. November 1, 1981: August 15. 1981: 

Readopted Eff. July 1. 1982: 

Amended Eff. August L -000: April I. 1999: August 1. 1998: 

January 1. 1995: November 1. 1993: March 1. 1990: July 1. 

1989. 

SUBCHAPTER 9B - STANDARDS FOR CRIMINAL 
JUSTICE EMPLOYMENT: EDUCATION: AND 
TRAINING 

SECTION .0100 - MINIMUM STANDARDS FOR 
CRIMINAL JUSTICE EMPLOYMENT 

.0106 DOCUMENTATION OF EDUCATIONAL 
REQUIREMENTS 

(a) Each applicant for employment as a criminal justice 
officer shall furnish to the employing agency documentary 
evidence that the applicant has met the educational 
requirements for the criminal justice field of expected 
employment. 

(b) Documentary evidence of educational requirements 
shall consist of official transcripts of courses completed or 
diplomas received from a school which meets the approval 
guidelines of either the North Carolina Department of Public 
Instruction, the Division of Non-Public Instruction, or 



comparable out-of-state agency. The Director of the Standards 
Division shall determine whether other types of documentation 
will be permitted in specific cases. High school diplomas 
earned through correspondence enrollment are not recognized 
toward these minimum educational requirements. 

(c) Documentary evidence of completion of the General 
Educational Development Test shall be satisfied by a certified 
copy of GED test results showing a total score of not less than 
225 points and a minimum score on any single test of 35 
points. A certified copy of a military GED diploma may be 
used as alternate evidence of GED completion. 

History Note: Authority G.S. 17C-6; 17C-10: 
Eff. January 1. 1981: 
Amended Eff. Aueust 1, 2000. 

SECTION .0200 -MINIMUM STANDARDS FOR 

CRIMINAL JUSTICE SCHOOLS AND CRIMINAL 

JUSTICE TRAINING PROGRAMS OR COURSES OF 

INSTRUCTION 

.0201 ADMINISTRATION OF CRIMINAL JUSTICE 
SCHOOLS 

(a) The executive officer or officers of the institution or 
agency sponsoring any criminal justice training program or 
course of instruction shall have primary responsibility for 
implementation of these Rules and standards and for 
administration of the school. The executive officer or officers 
of the institution or agency shall secure School Accreditation 
pursuant to 12 NCAC 9C .0401 prior to offering any criminal 
justice training course. 

(b) The executive officers shall designate not more than one 
compensated staff member for each commission-accredited 
program for which the institution or agency has been granted 
accreditation. Such staff member shall be certified by the 
Commission under Section .0500 of this Subchapter to be the 
criminal justice School Director. The School Director shall 
have administrative responsibility for planning, scheduling, 
presenting, coordinating, reporting, and generally managing 
each sponsored accredited criminal justice training course. If 
the accredited institution or agency assigns additional 
responsibilities to the certified School Director during the 
planning, development, and implementation of an accredited 
basic recruit training course, a qualified assistant must be 
designated to assist the School Director in the administration 
of the course. This person must be selected by the School 
Director and must attend a course orientation conducted by 
Standards Division staff and attend the annual School 
Directors' Conference. 

(c) The School Director shall permanently maintain records 
of all criminal justice training courses sponsored or delivered 
by the school, reflecting: 

( 1 ) course title; 

(2) delivery hours of course: 

(3) course deliverv dates; 



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(4) names and addresses of instructors utilized within 
designated subject-matter areas: and 

(5) a roster of enrolled trainees, showing class 
attendance and designating whether each trainee's 
course participation was successful or unsuccessful; 

(6) copies of all rules, regulations and guidelines 
developed by the School Director; 

(7) documentation of any changes in the initial course 
outline, including substitution of instructors; and 

(8) documentation of make-up work achieved by each 
individual trainee, including test scores and 
methods. 

(d) The executive officers of the institution or agency 
sponsoring any criminal justice training program or course of 
instruction shall meet or exceed the following specifications: 

( 1 ) acquire and allocate sufficient financial resources to 
provide commission certified instructors and to meet 
other necessary program expenses: 

(2) provide one designated clerical support person to 
assist the School Director in maintaining required 
records, complete reports, and provide other clerical 
needs as required by the School Director; 

(3) provide or make available suitable facilities, 
equipment, materials, and supplies for 
comprehensive and qualitative course delivery, 
specifically including the following: 

(A) a comfortable, well-lighted and ventilated 
classroom with a sealing capacity sufficient to 
accommodate all attending trainees: 
specifically: 

(i) provide a minimum of 24 square feet 

of floor space per trainee: 
(ii) provide over-head lighting measuring 

at a minimum. 70 foot candles at desk 

level; 
(iii) provide an adult size table and chair 

for each trainee; 

(B) audio-visual equipment and other 
instructional devices and aids necessary and 
beneficial to the delivery of effective training; 

(C) a library for trainees' use covering the 
subject-matter areas relevant to the training 
course, maintained in current status and 
having sufficient copies for convenient 
trainee access; 

(D) a firearms firing range designed for criminal 
justice firearms instruction to conduct the 
basic recruit firearms course, with the 
following specifications: 

(i) an operational public address system of 
sufficient volume to be audible to 
persons wearing ear plugs or other 
hearing protection while firearms are 
being discharged; 

(ii) an emergency first-aid kit; 



(iii) access limited to criminal justice 
trainees, criminal justice instructors, 
and personnel authorized by the School 
Director when firearms are being 
discharged: 

(iv) warning signs posted at all access 
points which clearly identify the area 
as a criminal justice firing range; 

(v) restrooms, drinking water and a rain- 
resistant shelter for personnel engaged 
in training; and 

(vi) telephone or radio communications 
immediately available to range 
instructors; 

(E) a driving range designated for criminal justice 
training, adequate in size and design to safely 
conduct the law enforcement basic recruit 
driving course, with the following 
specifications: 

(i) secured by barriers from through 
traffic while training is being 
conducted on the range; 

(ii) warning signs posted at all vehicle 
access points that shall clearly identify 
the area as a law enforcement training 
driving range and limit access to 
criminal justice trainees, criminal 
justice instructors, and personnel 
authorized by the School Director; 

(iii) an emergency first-aid kit; 

(iv) access to at least two automobiles 
designed and equipped for criminal 
justice driver training; 

(v) restrooms and drinking water for 
personnel engaged in training: and 

(vi) telephone or radio communications 
immediately available to range 
instructors; 

(F) a suitable area designated for subject 
control/arrest techniques instruction which 
enables the safe execution of this topical area, 
with the following specifications: 

(i) permanent or portable cushioned floor 

matting; 
(ii) an emergency first-aid kit; and 
(iii) telephone or radio communications 

immediately available to the 

instructors; 

(G) a suitable area for the conducting of physical 
fitness training, with the following 
specifications: 

(i) an obstacle course designed and 
constructed according to specifications 
outlined in the Basic Law Enforcement 
Training Course Management Guide as 
referenced in 12 NCAC 9B .0205(d); 



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(ii) appropriate space for running, weight 

training, calisthenics: and aerobics; 
(iii) restrooms and drinking water tor 

personnel engaged in training: 
(iv) shower facilities, if physical fitness 

training is conducted prior to 

classroom training. 

(e) In the event that an institution or agency does not own a 
required facility, written agreements with other entities must 
be made to assure use of and timely access to such facilities. 
A copy of such agreement must be on file for review by 
Standards Division staff. 

(f) Each institution or agency accredited to deliver basic 
recruit training shall provide access to supplies and equipment 
for trainee use during course delivery as specified in the Basic 
Law Enforcement Training Course Management Guide as 
referenced in 12 NCAC 9B .0205(d). 

History Note: Authority G.S, 17C-6; 
Eff. January 1. 1981; 
Amended Eff. November 1, 1981; 
ReadoptedEff. July 1. 1982; 

Amended Eff. August L 2000; January 1. 1996; March 1. 
1992; January 1, 1985. 

.0202 RESPONSIBILITIES OF THE SCHOOL 
DIRECTOR 

(a) In planning, developing, coordinating, and delivering 
each commission-accredited criminal justice training course, 
the School Director shall: 

( 1 ) Formalize and schedule the course curriculum in 
accordance with the curriculum standards 
established in this Subchapter. The "Criminal 
Justice Instructor Training Course" shall be 
presented with a minimum of 40 hours of instruction 
each week during consecutive calendar weeks until 
course requirements are completed. 

(2) Select and schedule instructors who are certified by 
the Commission 

(3) Provide each instructor with a current 
commission-approved course outline and all 
necessary additional information concerning the 
instructor's duties and responsibilities. 

(4) Review each instructor's lesson plans and other 
instructional materials for conformance to 
Commission standards and to minimize repetition 
and duplication of subject matter. 

(5) Arrange for the timely availability of appropriate 
audiovisual aids and materials, publications, 
facilities^ and equipment for training in all topic 
areas. 

(6) Develop, adopt, reproduce, and distribute any 
supplemental rules, regulations, and requirements 
determined by the school to be necessary or 
appropriate for: 

(A) effective course delivery: 



(B) establishing responsibilities and obligations 
of agencies or departments employing or 
sponsoring course trainees; and 

(C) regulating trainee participation and demeanor 
and ensuring trainee attendance and 
maintaining performance records. 

(7) If appropriate, recommend housing and dining 
facilities for trainees. 

(8) Administer the course delivery in accordance with 
Commission procedures and standards, give 
consideration to advisory guidelines issued by the 
Commission, and ensure that the training offered is 
safe and effective. 

(9) Maintain direct supervision, direction, and control 
over the performance of all persons to whom any 
portion of the planning, development, presentation, 
or administration of a course has been delegated. 

(10) Report the completion of each presentation of a 
Commission-accredited criminal justice training 
course to the Commission. 
(b) In addition to Paragraph (a) of this Rule, in planning 
developing, coordinating and delivering each Commission- 
accredited Basic Law Enforcement Training Course, the 
School Director shall: 

( 1 ) Schedule course presentation to include a minimum 
of 12 hours of instruction each week during 
consecutive calendar weeks except that there may be 
as many as three one-week breaks until course 
requirements are completed: and 

(2) Schedule only those instructors certified by the 
Commission to teach those high liability areas as 
specified in 12 NCAC 9B .0304(a) as either the lead 
instructor or in any other capacity; and 

(3) With the exception of the First Responder. Physical 
Fitness. Electrical and Hazardous Materials, and 
topical areas as outlined in 1 2 NCAC 9B .0304(a) of 
this Subchapter, schedule one specialized certified 
instructor for each six trainees while actively 
engaged in a practical performance exercise: and 

(4) Schedule one specialized certified instructor for 
each eight trainees while actively engaged in a 
practical performance exercise in the topical area 
"Subject Control Arrest Techniques"; and 

(5) Not schedule any single individual to instruct more 
than 35 percent of the total hours of the curriculum 
during any one delivery of the Basic Law 
Enforcement Training Course presentation: and 

(6) Not less than 15 days before commencing delivery 
of the Basic Law Enforcement Training Course, 
submit to the commission a Pre-Delivery Report of 
Training Course Presentation as set out in 12 NCAC 
9C .021 1 along with the following attachments: 

(A) A course schedule showing arrangement of 
topical presentations and proposed 
instructional assignments. 

(B) A copy of any rules, regulations, and 
requirements for the school. A copy of such 



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rules shall also be given to each trainee and to 
the executive officer of each trainee's 
employing or sponsoring agency or 
department at the time the trainee enrolls in 
the course. 
(C) The Director of the Standards Division shall 
review the submitted Pre-Delivery Report 
together with all attachments and notify the 
School Director of any apparent deficiency; 
and 

(7) Monitor, or designate a certified instructor to 
monitor, the presentations of all instructors during 
course delivery and prepare formal written 
evaluations on their performance and suitability for 
subsequent instructional assignments. 

(A) For probationary instructors. these 
evaluations shall be prepared on Commission 
forms and forwarded to the Commission. 
Based on this evaluation, the School Director 
shall have the responsibility for 
recommending approval or denial of requests 
for General Instructor Certification. 

(B) For all other instructors, these evaluations 
shall be prepared on Commission forms in 
accordance with Commission standards as set 
out in this Chapter. These evaluations shall 
be kept on file by the school for a period of 
three years and shall be made available for 
inspection by a representative of the 
Commission upon request. 

(C) Any designated certified instructor who is 
evaluating the instructional presentation of 
another instructor shall, at a minimum, hold 
certification in the same instructional topic 
area as that for which the instructor is being 
evaluated: and 

(8) Administer or designate a staff person to administer 
appropriate tests as determined necessary at various 
intervals during course delivery: 

(A) to determine and record the level of trainee 
comprehension and retention of instructional 
subject-matter; and 

(B) to provide a basis for a final determination or 
recommendation regarding the minimum 
degree of knowledge and skill of each trainee 
to function as an inexperienced law 
enforcement officer; and 

(C) to determine subject or topic areas of 
deficiency for the application of 12 NCAC 
9B .0405(a)(3); and 

(9) During a delivery of Basic Law Enforcement 
Training, make available to the Commission four 
hours of scheduled class time and classroom 
facilities for the administration of a written 
examination to those trainees who have 
satisfactorily completed all course work. 



(10) Not more than 10 days after receiving from the 
Commission's representative the Report of 
Examination Scores, submit to the Commission a 
Post-Delivery Report of Training Course 
Presentation (Form F-10B) which shall include: 

(A) a "Student Course Completion" form for each 
individual enrolled on the day of orientation; 
and 

(B) a "Certification and Test Score Release" 
form: and 

(c) In addition to Paragraph (a) of this Rule, in planning, 
developing, coordinating and delivering each Commission- 
accredited "Criminal Justice Instructor Training Course" the 
School Director shall: 

( 1 ) Schedule course presentation to include a minimum 
of 40 hours of instruction each week during 
consecutive calendar weeks until course 
requirements are completed. 

(2) Schedule at least one evaluator for each six trainees: 

(A) no evaluator will be assigned more than six 
trainees during a course delivery: and 

(B) each evaluator. as well as the instructors, 
must have successfully completed a 
Commission-accredited instructor training 
course or an equivalent instructor training 
course utilizing the Instructional Systems 
Design model, an international model with 
applications in education, military training, 
and private enterprise; and 

(C) each instructor and evaluator must document 
successful participation in a program 
presented by the Justice Academy for 
purposes of familiarization and 
supplementation relevant to delivery of the 
instructor training course and trainee 
evaluation. 

(3) Not less than 30 days before commencing delivery 
of the course, submit to the Commission a Pre- 
Delivery Report of Training Course Presentation 
[Form F-IOA(ITC)] with the following attachments: 

(A) a course schedule showing arrangement of 
topical presentations and proposed 
instructional assignments; and 

(B) the names and social security numbers of all 
instructors and evaluators; and 

(C) a copy of any rules, regulations, and 
requirements for the school. 

The Director of the Standards Division shall 
review the submitted Pre-Delivery Report 
together with all attachments and notify the 
School Director of any apparent deficiency. 

(4) Not more than 10 days after course completion the 
School Director shall submit to the Commission a 
Post-Delivery Report [Form F-IOB(ITC)] 
containing the following: 

(A) class enrollment roster; and 



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(B) a course schedule with designation of 
instructors and evaluators utilized in delivery; 
and 

(C) scores recorded for each trainee on both the 
80 minute skill presentation and the final 
written examination; and 

(D) designation of trainees who successfully 
completed the course in its entirety and whom 
the School Director finds to be competent to 
instruct. 

(d) In addition to Paragraph (a) of this Rule, in planning, 
developing, coordinating and delivering each 
Commission-accredited radar, radar and time-distance, or 
time-distance speed measurement operator training course or 
re-certification course, the School Director shall: 

( 1 ) select and schedule radar or time-distance speed 
measurement instrument instructors who are 
certified by the Commission as instructors for the 
specific speed measurement instruments in which 
the trainees are to receive instruction. The 
following requirements apply to operator 
certification training: 

(A) Provide to the instructor the Commission 
form(s) for motor-skill examination on each 
trainee; 

(B) Require the instructor to complete the 
motor-skill examination form on each trainee 
indicating the level of proficiency obtained on 
each specific instrument; 

(C) Require each instructor to sign each 
individual form and submit the original to the 
School Director. 

(2) not less than 30 days before the scheduled starting 
date submit to the Director of the Standards 
Division a Request for Training Course 
Presentation. 

(A) The request shall contain a period of course 
delivery including the proposed starting date, 
course location and the number of trainees to 
be trained in each type of approved 
speed-measurement instrument; 

(B) The Director of the Standards Division shall 
review the request and notify the School 
Director of the accepted delivery period 
unless a conflict exists with previously 
scheduled programs. 

(3) during the delivery of the training course, make 
available to the Commission two hours of scheduled 
class time and classroom facilities for the 
administration of a written examination to the 
trainee. 

(4) upon completing delivery of the 
Commission-accredited course, and not more than 
10 days after receiving from the Commissions 
representative the Report of Examination Scores, the 
School Director shall notify the Commission 
regarding the progress and achievements of each 



trainee by submitting a Post-delivery Report of 
Training Course Presentation. This report shall 
include the original motor-skill examination form(s) 
completed and signed by the certified instructor 
responsible for administering the motor-skill 
examination to the respective trainee. 

History Note: Authority G.S. 17C-6; 

Eff. January I. 1981; 

Amended Eff. November 1, 1981: 

Readopted w/change Eff. July I, 1982; 

Amended Eff. August L_ 2000; January 1. 1996; November 1, 

1993; December 1, 1987; January 1, 1985. 

.0203 ADMISSION OF TRAINEES 

(a) The school may not admit any individual younger than 
20 years of age as a trainee in any non-academic basic 
criminal justice training course. Individuals under 20 years of 
age may be granted authorization for early enrollment with 
prior written approval from the Director of the Standards 
Division as long as they turn 20 years of age prior to the date 
of the State Comprehensive Examination for the course. 

(b) The school shall give priority admission in accredited 
criminal justice training courses to individuals holding 
full-time employment with criminal justice agencies. 

(c) The school may not admit any individual as a trainee in 
a presentation of the "Criminal Justice Instructor Training 
Course" who will not meet the minimum education and 
experience requirements for instructor certification under Rule 
,0302( 1 ) of this Subchapter within three months of successful 
completion of the Instructor Training Stale Comprehensive 
Examination. 

(d) The school shall administer the reading component of a 
standardized test which reports a grade level for each trainee 
participating in the Basic Law Enforcement Training Course. 
The specific type of test instrument shall be determined by the 
School Director and shall be administered no later than by the 
end of the first two weeks of a presentation of the Basic Law 
Enforcement Training Course. 

(e) The school shall not admit any individual as a trainee in 
a presentation of the Basic Law Enforcement Training Course 
unless as a prerequisite the individual has provided to the 
certified School Director a medical examination report, 
properly completed by a physician licensed to practice 
medicine in North Carolina, to determine the individual's 
fitness to perform the essential job functions of a criminal 
justice officer. The Director of the Standards Division is 
authorized to grant an exception to this for a period of time not 
to exceed the commencement of the physical fitness topical 
area when failure to timely receive the medical examination 
report is not due to neglect on the part of the trainee. 

History Note: Authority G.S. 17C-6; 17C-10; 

Eff. January I. 1981; 

Amended Eff. August L 2000; January 1. 1995; March 1. 

1992; July 1. 1989; January 1. 1985. 



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.0204 TRAINING COURSE ENROLLMENT 

(a) Any school offering a Basic Law Enforcement Training 
Course shall have enrolled 10 trainees in the offering. 

(b) The school may not enroll any trainee later than the 
initial day of delivery of an accredited training course unless 
the trainee's enrollment is pursuant to an authorization of 
limited enrollment in a subsequent course pursuant to Rule 
.0405 of this Subchapter or pursuant to prescribed 
supplementary or remedial training required pursuant to Rule 
.0402 of this Subchapter. 

(c) The school may not enroll more than 18 trainees in a 
presentation of the "Criminal Justice Instructor Training 
Course" as constituted under Rule .0209 of this Section. 

History Note: Authority G.S. 17C-6; 

Eff. January 1. 1981: 

Amended Eff. Ana us t L_ 2000: January I. 1985: November 1, 

1981. 

.0205 BASIC LAW ENFORCEMENT TRAINING 

(a) The basic training course for law enforcement officers 
consists of instruction designed to provide the trainee with the 
skills and knowledge to perform those tasks essential to 
function in law enforcement. 

(b) The course entitled "Basic Law Enforcement Training" 
shall consist of a minimum of 602 hours of instruction and 
shall include the following identified topical areas and 
minimum instructional hours for each: 

(1) 



(Di Individuals with Mental Illness and 
Mental Retardation 



8 Hours 



(2) 



LEGAL UNIT 




(A) 


Motor Vehicle Laws 


20 Hours 


(B) 


Preparing for Court and 
Testifying in Court 


1 2 Hours 


(C) 


Elements of Criminal Law 


24 Hours 


(D) 


Juvenile Laws and Procedures 


8 Hours 


(E) 


Arrest. Search and Seizure- 
Constitutional Law 


28 Hours 


(F) 


ABC Laws and Procedures 


4 Hours 




UNIT TOTAL 


96 Hours 


PATROL DUI IES UNIT 




(A) 


Techniques of Traffic Law 
Enforcement 


24 Hours 


(B) 


Explosives and Hazardous Materia 
Emergencies 


si 2 Hours 


(C) 


Traffic Accident Investigation 


20 Hours 


(D) 


In-Custody Transportation 


8 Hours 


(E) 


Crowd Management 


1 2 Hours 


(F) 


Patrol Techniques 


20 Hours 


(G) 


Law Enforcement Communication 
and Information Systems 


8 Hours 




UNIT TOTAL 


104 Hours 



(3) 



LAW ENFORCEMENT COMMUNICATION 
UNIT 

(A) Dealing with Victims and the PubliclO Hours 

(B) Domestic Violence Response 12 Hours 

(C) Ethics for Professional Law 4 Hours 
Enforcement 





(E) 


Crime Prevention Techniques 


6 Hours 




(F) 


Communication Skills for Law 
Enforcement Officers 


8 Hours 






UNIT TOTAL 


48 Hours 


(4) 


INVESTIGATION UNIT 






(A) 


Fingerprinting and Photographing 
Arrestee 


6 Hours 




(B) 


Field Note-taking and Report 








Writing 


1 2 Hours 




(C) 


Criminal Investigation 


32 Hours 




(D) 


Interviews: Field and In-Custody 


16 Hours 




(E) 


Controlled Substances 


10 Hours 






UNIT TOTAL 


76 Hours 


(5) 


PRACTICAL APPLICATION UNIT 






(A) 


First Responder 


40 Hours 




(B) 


Firearms 


48 Hours 




(C) 


Law Enforcement Driver Training 


40 Hours 




(D) 


Physical Fitness 
(i) Fitness Assessment & 


8 Hours 






Testing 


12 Hours 






(ii) 1 hour - 3 days a week 


34 Hours 




(E) 


Subject Control Arrest Techniques 


40 Hours 






UNIT TOTAL 


222 Hours 


(6) 


SHERIFF-SPECIFIC UNIT 






(A) 


Civil Process 


24 Hours 




(B) 


Sheriffs" Responsibilities: Detention 4 Hours 






Duties 






(C) 


Sheriffs' Responsibilities: Court 








Duties 


6 Hours 






UNIT TOTAL 


34 Hours 


(7) 


COURSE ORIENTATION 


2 Hours 


(8) 


TESTING 

TOTAL COURSE HOURS 


20 Hours 




602 Hours 



(c) The "Basic Law Enforcement Training Manual" as 
published by the North Carolina Justice Academy shall be 
used as the basic curriculum for this basic training course for 
law enforcement officers as administered by the Commission. 
Copies of this publication may be inspected at the office of the 
agency: 

Criminal Justice Standards Division 
North Carolina Department of Justice 

1 1 4 West Edenton Street 

Old Education Building 

Post Office Drawer 149 
Raleigh. North Carolina 27602 

and may be obtained from the Academy at the following 
address: 

North Carolina Justice Academy 
Post Office Drawer 99 



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849 



_s£S 



APPROVED RULES 



Salemburg. North Carolina 28385 

(d) The "Basic Law Enforcement Training Course 
Management Guide" as published by the North Carolina 
Justice Academy shall be used by certified School Directors in 
planning, implementing and delivering basic training courses. 
Each certified School Director shall be issued a copy of the 
guide at the time of certification at no cost to the accredited 
school. The public may obtain copies of this guide from the 
Justice Academy . 

History Note: Filed as a Temporary Amendment Eff. 

December 14, 1983 for a Period of 120 Days to Expire on 

April 12, 1984; 

Authority G.S. 17C-6; I7C-10; 

Eff. January 1. 1981; 

Amended Eff. Ausust 1. 2000; July 1. 1997; January 1. 1995; 

February 1. 1991; July 1. 1989. 

.0206 BASIC TRAINING -- CORRECTIONAL 
OFFICERS 

(a) The basic training course for correctional officers shall 
consist of a minimum of 160 hours of instruction designed to 
provide the trainee with the skills and knowledge to perform 
those tasks essential to function as a correctional officer. 

(hi Each basic training course for correctional officers shall 
include the following identified topic areas and minimum 
instructional hours for each area: 



(1) 
(2) 
(3) 
(4) 
(5) 
(6) 
(7) 
(8) 
(9) 

(10) 
(11) 
(12) 
(13) 
(14) 
(15) 
(16) 
(17) 

(18) 



The Division of Prisons Employee 2 Hours 
Prison Security Functions and Procedures 4 Hours 

Contraband and Techniques of Search 8 Hours 

Inmate Supervision 8 Hours 

Firearms 24 Hours 
Inmate Classification Process and Programs 4 Hours 

Understanding Inmate Behavior 12 Hours 

Prison Emergency Operations 1 8 Hours 
Radio Communications. Transporting, and 4 Hours 
Restraints 

Basic Life Support 12 Hours 

Prison Health Services 2 Hours 

Report Writing 6 Hours 

You and the Law 4 Hours 

Interpersonal Communication Skills 16 Hours 

Unarmed Self Defense 1 8 Hours 

Role of the Correctional Witness 4 Hours 
Disciplinary & Inmate Grievance 

Procedures 4 Hours 
Administrative Matters. Review and 
Testing 



Total 



10 Hours 



160 Hours 



(c) The "Basic Correction Officer Training Manual" as 
published by the Department of Correction shall be used as the 
basic curriculum for delivery of correctional officer basic 
training courses. Copies of this publication may be inspected 
at the office of the agency: 



The Office of Staff Development and Training 

North Carolina Department of Correction 

1001 Mountford Avenue 

Raleigh. North Carolina 27626-0540 

and may be obtained from the Department of Correction for 
fifty dollars (S50.00) per copy. 

(d) Commission-accredited schools that are accredited to 
offer the "Basic Training: Correctional Officers" course are: 
The Office of Staff Development and Training of the North 
Carolina Department of Correction. 

(e) Upon successful completion of a commission-accredited 
training course by correctional trainees, the director of the 
school conducting such course shall notify the Commission of 
the satisfactory achievement of trainees by submitting a 
monthly Report of Training Course Completion referenced in 
12NCAC9C .0213. 

History Note: Authority G.S. 17C-6; 17C-10; 

Eff. January 1, 1981; 

Amended Eff. August L 2000; August 1. 1995: July 1. 1989; 

February 1. 1987: April 1. 1983. 

.0226 SPECIALIZED FIREARMS INSTRUCTOR 
TRAINING 

(a) The instructor training course requirement for 
specialized firearms instructor certification shall consist of a 
minimum of 83 hours of instruction presented during a 
continuous period of not more than two weeks. 

(b) Each specialized firearms instructor training course 
shall be designed to provide the trainee with the skills and 
knowledge to perform the function of a criminal justice 
firearms instructor in a Basic Law Enforcement Training 
Course or a "Law Enforcement Officers "s In-Service Firearms 
Training and Qualification Program". 

(c) Each applicant for specialized firearms instructor 
training shall: 

(1) 



(2) 



(3) 



have completed the criminal justice general 
instructor training course: and 
present a written endorsement by a certified school 
director indicating the student will be utilized to 
instruct firearms in the Basic Law Enforcement 
Training Course: or 

present a written endorsement by a department head 
or certified school director indicating the student 
will be utilized to instruct firearms in a "Law 
Enforcement Officer's In-Service Firearms Training 
and Qualification Program": and 
possess a valid CPR Certification that included 
cognitive and skills testing, 
(d) Each specialized firearms instructor training course 
shall include as a minimum the following identified topic areas 
and minimum instructional hours for each area: 

( 1 ) Orientation/Pretest 8 Hours 

(2) Range Operations 38 Hours 
(3)' Civil Liability 4 Hours 
(4) Nisht Firing 2 Hours 



(4) 



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(5) Combat Shooting 8 Hours 

(6) Mental Conditioning 1 Hour 

(7) Shotgun Operation and Firing 4 Hours 

(8) Service Handgun - Operation and Use 5 Hours 

(9) Rifle - Operation and Maintenance 4 Hours 

( 10) Service Handgun - Maintenance & 

Cleaning 2 Hours 

(11) Range Medical Emergencies 2 Hours 

(12) In-Service Firearms Requirements 2 Hours 

(13) BLET Lesson Plan Review/Post Test 3 Hours 

(e) The "Specialized Firearms Instructor Training Manual" 
as published by the North Carolina Justice Academy shall be 
used as the basic curriculum for delivery of specialized 
firearms instructor training courses. Copies of this publication 
may be inspected at the agency: 

Criminal Justice Standards Division 
North Carolina Department of Justice 

1 1 4 West Edenton Street 

Old Education Building 

Post Office Drawer 149 
Raleigh. North Carolina 27602 

and may be obtained at no cost to the student from the 
Academy at the following address: 

North Carolina Justice Academy 
Post Office Box 99 

Salemburg. North Carolina 28385 

(f) Commission-accredited schools that are accredited to 
offer the "Specialized Firearms Instructor Training" course 
are: The North Carolina Justice Academy. 

History Note: Authority G.S. 17C-6; 

Eff. May I, 1986: 

Amended Eff. August L. 2000: August I. 1995; February 1, 

1991: March 1, 1990: July I, 1989. 

.0227 SPECIALIZED DRIVER INSTRUCTOR 
TRAINING 

(a) The instructor training course required for specialized 
driver instructor certification shall consist of a minimum of 35 
hours of instruction presented during a continuous period of 
not more than one week. 

(b) Each specialized driver instructor training course shall 
be designed to provide the trainee with the skills and 
knowledge to perform the function of a criminal justice driver 
instructor in a Basic Law Enforcement Training Course. 

(c) Each applicant for specialized driver instructor training 
shall: 

(1) have completed the criminal justice general 
instructor training course; 

(2) present a written endorsement by a certified school 
director indicating the student will be utilized to 
instruct driving in Basic Law Enforcement Training 
Courses: 



(3) possess a valid operator driver's license; 

(4) maintain a safe driving record where no more than 
four points have been assigned against the driving 
record within the past three years; and 

(5) possess a valid CPR Certification that included 
cognitive and skills testing. 

(d) Each specialized driver instructor training course shall 
include as a minimum the following identified topic areas and 
minimum instructional hours for each area: 

( 1 ) Orientation 1 Hour 

(2) Lesson Plan Review (BLET) 4 Hours 

(3) General Mechanical Knowledge 2 Hours 

(4) Before - Operation Inspection 1 Hour 

(5) Laws of Natural Force & Operating 4 Hours 
Characteristics 

(6) Driver Practicum/Pre-Tcst 16 Hours 

(7) Fundamentals of Professional Liability 4 Hours 
for Trainers 

(8) Course Review/State Exam 3 Hours 

(e) The "Specialized Driver Instructor Training Manual" as 
published by the North Carolina Justice Academy shall be 
used as the basic curriculum for delivery of specialized driver 
instructor training courses. Copies of this publication may be 
inspected at the agency: 

Criminal Justice Standards Division 

North Carolina Department of Justice 

1 14 West Edenton Street 

Old Education Building 

Post Office Drawer 149 

Raleigh. North Carolina 27602 

and may be obtained at no cost to the student from the 

Academy at the following address: 

North Carolina Justice Academy 

Post Office Box 99 
Salemburg. North Carolina 28385 

(f) Commission-accredited schools that are accredited to 
offer the "Specialized Driver Instructor Training" course are: 
The North Carolina Justice Academy and The North Carolina 
State Highway Patrol. 

History Note: Authority G.S. I7C-6; 

Eff. Max 1. 1986; 

Amended Eff. August L 2000: August I. 1995: February 1. 

1991: March 1. 1990; Jul} 1. 1989. 

.0228 BASIC TRAINING ~ WILDLIFE 
ENFORCEMENT OFFICERS 

(a) The basic training course lor wildlife enforcement 
officers appointed by the Wildlife Resources Commission as 
authorized under General Statute 113-136 shall consist of a 
minimum of 662 hours of instruction designed to provide the 
trainee w ith the skills and knowledge to perform those tasks 
essential to function as a wildlife enforcement officer. 

(b) Each basic training course for wildlife enforcement 
officers shall include the following identified topical areas and 
minimum instructional hours lor each area: 



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( 1 ) Course Orientation 4 Hours 

(2) Arrest Search & Seizure/Constitutional 
Law 28 Hours 

(3) Law Enforcement Communications and Information 
System 8 Hours 

(4) Elements of Criminal Law 24 Hours 

(5) Subject Control/Arrest Techniques 48 Hours 

(6) Juvenile Law and Procedures 8 Hours 

(7) First Responder 40 Hours 

(8) Firearms 60 Hours 

(9) Hunter Safety 12 Hours 

10) Patrol Techniques 16 Hours 

1 1 ) Field Notetaking and Report Writing 12 Hours 

1 2 ) Domestic Violence Response 1 2 Hours 

13) Criminal Investigation 12 Hours 

14) Field & Custodial Interviews 16 Hours 

15) Controlled Substances 10 Hours 

16) ABC Laws and Procedures 4 Hours 

17) Explosives & Hazardous Materials 12 Hours 

18) Law Enforcement Drivers Training 48 Hours 

19) Preparing for Court and Testifying in 
Court 1 2 Hours 

20) Game and Fish Laws 36 Hours 

2 1 ) Motorboat Laws 1 2 Hours 

22) Boating Procedures & Small Boat 
Handling 20 Hours 

23) Dealing with Problem Animal Situations 4 Hours 

24) Basic Field Identification of Fishes 6 Hours 

25) Basic Field Identification of Game Animals. Game 
Birds and Non-Game Animals 2 Hours 

26) Identification of Migratory Waterfowl 2 Hours 

27) Endangered Species 2 Hours 

28) Trapping 8 Hours 

29) Water Safety and Swimming 16 Hours 

30) Knotsmanship. A Practical Use of Rope 2 Hours 

3 1 ) Wildlife Law Enforcement and the Media 8 Hours 

32) Motorboat Accident Investigation 12 Hours 

33) Crowd Management 12 Hours 

34) Radiological Monitoring 12 Hours 
?5) Covert Activities 2 Hours 

36) Basic Photography 4 Hours 

37) Motor Vehicle Laws 20 Hours 

38) Physical Training 60 Hours 

39) Standardized Field Sobriety Training 32 Hours 

40) Ethics 4 Hours 
(c) The "Wildlife Basic Training Manual" as published by 

the North Carolina Wildlife Resources Commission shall be 

used as the basic curriculum for delivery of wildlife 

enforcement officer basic training courses. Copies of this 

publication may be inspected at the office of the agency: 

The Division of Enforcement Training Office 

North Carolina Wildlife Resources Commission 

512 North Salisbury Street 

Raleigh. North Carolina 27604 

and may be obtained from the Wildlife Resources Commission 

for ninety-five dollars (S95.00) per copy. 



(d) Commission-accredited schools that are accredited to 
offer the "Basic Training: Wildlife Enforcement Officers" 
course are: The Division of Enforcement Training Office of 
the North Carolina Wildlife Resources Commission. 

History Note: Authority G.S. 17C-6: 17C-10: 

Eff. February 1. 1987: 

Amended Eff. August L 2000: August 1. 1995: July 1. 1991: 

July 1. 1989. 

.0232 SPECIALIZED SUBJECT CONTROL 
ARREST TECHNIQUES INSTRUCTOR 
TRAINING 

(a) The instructor training course required for specialized 
subject control arrest techniques instructor certification shall 
consist of a minimum of 80 hours of instruction presented 
during a continuous period of not more than two weeks. 

(b) Each specialized subject control arrest techniques 
instructor training course shall be designed to provide the 
trainee with the skills and knowledge to perform the function 
of a criminal justice subject control arrest techniques instructor 
in a Basic Law Enforcement Training Course. 

(c) Each applicant for specialized subject control arrest 
techniques instructor training shall: 

( 1 ) have completed the criminal justice general 
instructor training course; 

(2) present a letter from a licensed physician stating the 
applicant's physical fitness to participate in the 
course; 

(3) present a written endorsement by a certified school 
director indicating the student will be utilized to 
instruct subject control arrest techniques in Basic 
Law Enforcement Training Courses; and 

(4) possess a valid CPR Certification that included 
cognitive and skills testing. 

(d) Each specialized subject control arrest techniques 
instructor training course shall include as a minimum the 
following identified topic areas and minimum instructional 
hours for each area: 

( 1 ) Orientation 1 Hour 

(2) Skills Pre-Test 1 Hour 

(3) Student Instructional Practicum 3 Hours 

(4) Practical Skills Evaluation 3 Hours 

(5) Response to Injury 4 Hours 

(6) Importance of Being Physically Fit and 
Conducting Safe Warm-Up Exercises 1 2 Hours 

(7) Safety Guidelines/Rules 2 Hours 

(8) Practical Skills Enhancement 4 Hours 

(9) Subject Control/Arrest Techniques Practical 
Skills and Instructional Methods 44 Hours 

( 10) Fundamentals of Professional Liability 

For Law Enforcement Trainers 4 Hours 

(11) State Comprehensive Examination/Course 
Closing 2 Hours 
TOTAL 80 Hours 

(e) The "Specialized Subject Control Arrest Techniques 
Instructor Training Manual" as published b\ the North 



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Carolina Justice Academy shall be used as the basic 
curriculum for delivery of specialized subject control arrest 
techniques instructor training courses. Copies of this 
publication may be inspected at the agency: 

Criminal Justice Standards Division 

North Carolina Department of Justice 

1 14 West Edenton Street 

Old Education Building 

Post Office Drawer 149 

Raleigh, North Carolina 27602 

and may be obtained at no cost to the student from the 

Academy at the following address: 

North Carolina Justice Academy 

Post Office Box 99 

Salemburg, North Carolina 28385 

(f) Commission-accredited schools that are accredited to 

offer the "Specialized Subject Control Arrest Techniques 

Instructor Training" course are: The North Carolina Justice 

Academy. 

History Note: Authority G.S. I7C-6; 

Eff. February 1. 1987; 

Amended Eff. August 1. 2000: August 1. 1995; March 1, 1990; 

July I, 1989. 

.0233 SPECIALIZED PHYSICAL FITNESS 
INSTRUCTOR TRAINING 

(a) The instructor training course required for specialized 
physical fitness instructor certification shall consist of a 
minimum of 47 hours of instruction presented during a 
continuous period of not more than one week. 

(b) Each specialized physical fitness instructor training 
course shall be designed to provide the trainee with the skills 
and knowledge to perform the function of a criminal justice 
physical fitness instructor in a Basic Law Enforcement 
Training Course. 

(c) Each applicant for specialized physical fitness training 
shall: 

( 1 ) qualify through one of the following three options: 

(A) have completed the criminal justice general 
instructor training course; or 

(B) hold a current and valid North Carolina 
Teacher's Certificate and hold a minimum of 
a baccalaureate degree in physical education 
and be actively teaching in physical education 
topics; or 

(C) be presently instructing physical education 
topics in a community college, college or 
university and hold a minimum of a 
baccalaureate degree in physical education; 
and 

(2) present a written endorsement by a certified school 
director indicating the student will be utilized to 
instruct physical fitness in Basic Law Enforcement 
Training Courses; and 



(3) present a letter from a physician slating fitness to 
participate in the course: and 

(4) possess a valid CPR Certification that included 
cognitive and skills testing. 

(d) Each specialized physical fitness instructor training 
course shall include as a minimum the following identified 
topic areas and minimum instructional hours for each area: 

( 1 ) Orientation 3 Hours 

(2) Lesson Plan Review 4 Hours 

(3) Physical Fitness Assessments. Exercise 
Programs and Instructional Methods 24 Hours 

(4) Injury Care and Prevention 4 Hours 

(5) Nutrition 6 Hours 

(6) Civil Liabilities for Trainers 2 Hours 

(7) CVD Risk Factors 2 Hours 

(8) State Examination 2 Hours 
TOTAL 47 Hours 

(e) The "Physical Fitness Instructor Training Manual" as 
published by the North Carolina Justice Academy shall be 
used as the basic curriculum for delivery of specialized 
physical fitness instructor training courses. Copies of this 
publication may be inspected at the agency: 

Criminal Justice Standards Division 
North Carolina Department of Justice 

1 1 4 West Edenton Street 

Old Education Building 

Post Office Drawer 149 
Raleigh. North Carolina 27602 

and may be obtained at no cost to the student from the 
Academy at the following address: 

North Carolina Justice Academy 
Post Office Box 99 

Salemburg. North Carolina 28385 

(f) Commission-accredited schools that are accredited to 
offer the "Specialized Physical Fitness Instructor Training" 
course are: The North Carolina Justice Academy. 

Histoid Note: Authority G.S. 17C-6; 

Eff. July 1. 1989; 

Amended Eff. August L 2000; August 1. 1995; March 1. 1990. 

SECTION .0300 - MINIMUM STANDARDS FOR 
CRIMINAL JUSTICE INSTRUCTORS 

.0305 TERMS AND CONDITIONS OF 
SPECIALIZED INSTRUCTOR 
CERTIFICATION 

(a) An applicant meeting the requirements for Specialized 
Instructor Certification shall be issued a certification to run 
concurrently with the existing General Instructor Certification. 
The applicant must apply for certification as a specialized 
instructor within 60 days from the date of completion of a 
specialized instructor course. 

(b) The terms of certification as a specialized instructor will 
be determined by the expiration date of the existing General 



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Instructor Certification. The following requirements shall 
apply during the initial period of certification: 

( 1 ) where certification for both general probationary 
instructor and Specialized Instructor Certification is 
issued on the same date, the instructor will only be 
required to satisfy the teaching requirement for the 
general probationary instructor certification. The 
instructor may satisfy the teaching requirement for 
the general probationary instructor certification by 
teaching any specialized topic for which 
certification has been issued; 

(2) when Specialized Instructor Certification is issued 
during an existing period of General Instructor 
Certification, either probationary status or full 
general status, the specialized instructor may satisfy 
the teaching requirement for the general certification 
by teaching the specialized subject for which 
certification has been issued: 

(3) where Specialized Instructor Certification becomes 
current with an existing 24 month period of General 
Instructor Certification, the instructor must teach a 
minimum of eight hours for each specialized topic 
for which certification has been issued. 

(c) The term of certification as a specialized instructor shall 
not exceed the 24 month period of full General Instructor 
Certification. The certification may subsequently be renewed 
by the Commission at the time of renewal of the full General 
Instructor Certification. The application for renewal shall 
contain, in addition to the requirements listed in Rule .0304 of 
this Section, documentary evidence that the applicant has 
remained active in the instructional process during the 
previous two-year period. Such documentary evidence shall 
include, at a minimum, the following: 

( 1 ) proof that the applicant has. within the two-year 
period preceding application for renewal, instructed 
at least eight hours in each of the topics for which 
Specialized Instructor Certification was granted and 
such instruction must be in a 
Commission-accredited training course or a 
Commission-recognized in-service training course. 
Acceptable documentary evidence shall include 
official Commission records submitted by School 
Directors and written certification from a School 
Director; and either 

(2) a favorable written recommendation from a School 
Director accompanied by certification that the 
instructor successfully taught at least eight hours in 
each of the topics for which Specialized Instructor 
Certification was granted. Such teaching must have 
occurred in a Commission-accredited training 
course or a Commission-recognized in-service 
training course during the two-year period of 
Specialized Instructor Certification: or 

(3) a favorable evaluation by a commission or staff 
member, based on an on-site classroom evaluation 
of a presentation by the instructor in a 
Commission-accredited training course or a 



Commission-recognized in-service training course, 
during the two-year period of Specialized Instructor 
Certification. In addition, instructors evaluated by a 
Commission or staff member must also teach at 
least eight hours in each of the topics for which 
Specialized Instructor Certification was granted. 

(d) Certification as a specialized instructor in the First 
Responder. Physical Fitness. Electrical and Hazardous 
Materials, and State Youth Services Medical Emergencies 
topical areas as outlined in Rules .0304(d)(1). (e)(2). (f)(1), 
and (g) of this Section, specifically those certifications not 
based upon General Instructor Certification, shall remain in 
effect for twenty-four (24) months from the date of issuance. 
During the twenty-four (24) month term all non-Commission 
certificates required in Rules .0304(d)( 1 ). (e)(2), (f)( 1 ), and (g) 
for specialized instructor certification in the First Responder, 
Physical Fitness, Electrical and Hazardous Materials, and State 
Youth Services Medical Emergencies topical areas must be 
maintained 

(e) All instructors shall remain active during their period of 
certification. If an instructor does not teach at least eight hours 
in each of the topic areas for which certification is granted, the 
certification shall not be renewed for those topics in which the 
instructor failed to successfully teach. Any specialized 
instructor training courses previously accepted by the 
Commission for purposes of certification shall no longer be 
recognized if the instructor does not successfully teach at least 
eight hours in each of the specialized topics during the 
two-year period of which certification was granted. Upon 
application for re-certification, such applicants shall be 
required to meet the minimum requirements of Rule .0304 of 
this Section. 

(f) The use of guest participants in a delivery of the "Basic 
Law Enforcement Training Course" is permissible. However, 
such guest participants are subject to the direct on-site 
supervision of a Commission-certified instructor and must be 
authorized by the School Director. A guest participant shall 
only be used to complement the primary certified instructor of 
the block of instruction and shall in no way replace the 
primary instructor. 

History Note: Authority G.S. I7C-6; 

Eff. January 1. 1981; 

Amended Eff. August L 2000; July 1. 1991; July I. 1989; 

December I, 1987; February 1, 1987. 

SUBCHAPTER 9C - ADMINISTRATION OF 

CRIMINAL JUSTICE EDUCATION AND TRAINING 

STANDARDS 



SECTION .0200 - FORMS 



.0211 



PREDELIVERY REPORT OF TRAINING 
COURSE PRESENTATION 

The Pre-delivery Report of Training Course Presentation, is 
a form on which the School Director notifies the Commission 



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of its intent to present the Basic Law Enforcement Training 
course. Information requested includes the number of hours; 
delivery period: location; anticipated number of trainees; and a 
topical course schedule including proposed instructional 
assignments. 

History Note: Authority G.S. 1 7C-6; 150B- 1 1 ; 
Eff. January 1, 1981; 

Amended Eft'. August I, 2000. 

.0212 POST-DELIVERY REPORT OF TRAINING 
COURSE PRESENTATION 

The Post-Delivery Report of Training Course Presentation, 
is a form on which the School Director notifies the 
Commission of the completion of the "Basic Law Enforcement 
Training " course, together with the achievement and 
performance level attained by each enrolled trainee. The 
information requested includes a roster of all trainees enrolled 
and their employing agencies, a listing of each instructor used 
in delivering the training with topics presented, and the 
trainees" scores on each written, oral or motor-skill 
examination administered by the school. The Student Course 
Completion form, a part of the Post-Delivery Training Course 
Report, shall include student name; date of birth; Social 
Security Number: enrollment status: accredited school 
identification number; course identification number; student 
scores in each of the topical areas: and score on the State 
Comprehensive Examination. 

History Note: Authority G.S. 17C-6; 150B-21.2; 
Eff. January 1, 1981; 

Amended Eff. August 1, 2000. 

.0213 STUDENT COURSE COMPLETION RECORD 

The Student Course Completion Record, is a form used to 
report the satisfactory completion of training in courses other 
than the "Basic Law Enforcement Training" course. The 
Report of Training Course Completion shall include student 
information, name, date of birth, and Social Security Number; 
employment information to include department or agency, 
division where applicable, position name or title, and date of 
appointment: course information to include course title, 
location held, course start and end dates, class hours, and total 
contact hours of instruction. The form must be signed and 
dated by the School Director along with the name of the 
accredited institution. 

History Note: Authority G.S. 17C-6; 150B-21.2; 
Eff. January 1, 1981; 

Amended Eft. August I. 2000. 



TITLE 15A DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 



SUBCHAPTER 2Q - AIR QUALITY PERMIT 
PROCEDURES 

.0702 EXEMPTIONS 

(a) A permit to emit toxic air pollutants shall not be 
required under this Section for: 

( 1 ) residential wood stoves, heaters, or fireplaces: 

(2) hot water heaters that are used for domestic- 
purposes only and are not used to heat process 
water; 

(3) maintenance, structural changes, or repairs that do 
not change capacity of that process, fuel-burning, 
refuse-burning, or control equipment, and do not 
involve any change in quality or nature or increase 
in quantity of emission of any regulated air pollutant 
or toxic air pollutant; 

(4) housekeeping activities or building maintenance 
procedures, including painting buildings, 
resurfacing floors, roof repair, washing, portable 
vacuum cleaners, sweeping, use and associated 
storage of janitorial products, or non-asbestos 
bearing insulation removal; 

(5) use of office supplies, supplies to maintain copying 
equipment, or blueprint machines; 

(6) paving parking lots: 

(7) replacement of existing equipment with equipment 
of the same size. type, and function that does not 
result in an increase to the actual or potential 
emissions of any regulated air pollutant or toxic air 
pollutant and that does not affect compliance status 
and. with replacement that fits the description of the 
existing equipment in the permit, including the 
application, such that the replacement equipment 
can be operated under that permit without any 
changes to the permit: 

(8) comfort air conditioning or comfort ventilation 
systems that does not transport, remove, or exhaust 
regulated air pollutants to the atmosphere: 

(9 ) equipment used for the preparation of food for direct 
on-site human consumption: 

(10) non-self-propelled non-road engines. except 
generators, regulated by rules adopted under Title II 
of the federal Clean Air Act; 

(11) slacks or vents to prevent escape of sewer gases 
from domestic waste through plumbing traps; 

(12) use of fire fighting equipment; 

(13) the use for agricultural operations by a farmer of 
fertilizers, pesticides, or other agricultural chemicals 
containing one or more of the compounds listed in 
15A NCAC 2D .1104 if such compounds are 
applied according to agronomic practices acceptable 
to the North Carolina Department of Agriculture and 
the Commission; 

(14) asbestos demolition and renovation projects that 
comply with 15A NCAC 2D .1110 and that are 
being done by persons accredited b\ the Department 



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APPROVED RULES 



(15) 



(16) 



(17) 



(19) 



(20) 
(21) 
(22) 



of Health and Human Services under the Asbestos 
Hazard Emergency Response Act; 
farm and pet incinerators used only to dispose of 
dead animals as identified in 15A NCAC 2D 
.1201(d) and (e). 

refrigeration equipment that is consistent with 
Section 601 through 618 of Title VI (Stratospheric- 
Ozone Protection) of the federal Clean Air Act, 40 
CFR Part 82. and any other regulations promulgated 
by EPA under Title VI for stratospheric ozone 
protection, except those units used as or with air 
pollution control equipment; 
laboratory activities: 

(A) bench-scale, on-site equipment used 
exclusively for chemical or physical analysis 
for quality control purposes, staff instruction, 
water or wastewater analyses, or non- 
production environmental compliance 
assessments; 

(B) bench scale experimentation, chemical or 
physical analyses, training or instruction from 
nonprofit, non-production educational 
laboratories; 

(C) bench scale experimentation, chemical or 
physical analyses, training or instruction from 
hospital or health laboratories pursuant to the 
determination or diagnoses of illnesses; and 

(D) research and development laboratory 
activities that are not required to be permitted 
under Section .0500 of this Subchapter 
provided the activity produces no commercial 
product or feedstock material; 

combustion sources as defined in 2Q .0703 until 18 
months after promulgation of the MACT or GACT 
standards for combustion sources; (Within 18 
months following promulgation of the MACT or 
GACT standards for combustion sources, the 
Commission shall decide whether to keep or remove 
the combustion source exemption. If the 
Commission decides to remove the exemption, it 
shall initiate rulemaking procedures to remove this 
exemption.) 
storage tanks used only to store: 

(A) inorganic liquids with a true vapor pressure 
less than 1 .5 pounds per square inch absolute; 

(B) fuel oils, kerosene, diesel. crude oil. used 
motor oil. lubricants, cooling oils, natural gas. 
liquefied petroleum gas. or petroleum 
products with a true vapor pressure less than 
1.5 pounds per square inch absolute; 

dispensing equipment used solely to dispense diesel 
fuel, kerosene, lubricants or cooling oils; 
portable solvent distillation systems that are 
exempted under 15A NCAC 2Q .0102 (b)( 1 )(I): 
processes: 



(A) small electric motor burn-out ovens with 
secondary combustion chambers or 
afterburners; 

(B) small electric motor bake-on ovens; 

(C) burn-off ovens for paint-line hangers with 
afterburners; 

(D) hosiery knitting machines and associated lint 
screens, hosiery dryers and associated lint 
screens, and hosiery dyeing processes where 
bleach or solvent dyes are not used; 

(E) blade wood planers planing only green wood; 

(F) saw mills that saw no more than 2,000,000 
board feet per year provided only green wood 
is sawed; 

(G) perchloroethylene drycieaning processes with 
12-month rolling average consumption of: 

(i) less than 1366 gallons of 
perchloroethylene per year for facilities 
with dry-to-dry machines only; 
(ii) less than 1171 gallons of 
perchloroethylene per year for facilities 
with transfer machines only; or 
(iii) less than 1171 gallons of 
perchloroethylene per year for facilities 
with both transfer and dry-to-dry 
machines; 

(23) wood furniture manufacturing operations as defined 
in 40 CFR 63.801(a) that comply with the emission 
limitations and other requirements of 40 CFR Part 
63 Subpart JJ. provided that the terms of this 
exclusion shall not affect the authority of the 
Director under 15A NCAC 2Q .0712; 

(24) gasoline dispensing facilities or gasoline service 
station operations that comply with 15A NCAC 2D 
.0928 and .0932 and that receive gasoline from bulk 
gasoline plants or bulk gasoline terminals that 
comply with 15A NCAC 2D .0524. .0925. .0926, 
.0927, .0932, and .0933 via tank trucks that comply 
with 15A NCAC 2D .0932; 

(25) the use of ethylene oxide as a sterilant in the 
production and subsequent storage of medical 
devices or the packaging and subsequent storage of 
medical devices for sale if the emissions from all 
new and existing sources at the facility described in 
15A NCAC 2D .0538(d) are controlled at least to 
the degree described in 15A NCAC 2D .0538(d) and 
the facility complies with 15A NCAC 2D .0538(e) 
and (f); 

(26) bulk gasoline plants, including the storage and 
handling of fuel oils, kerosenes, and jet fuels but 
excluding the storage and handling of other organic 
liquids, that comply with 15A NCAC 2D .0524, 
.0925, .0926. .0932. and .0933: unless the Director 
finds that a permit to emit toxic air pollutants is 
required under this Section for a particular bulk 

" gasoline plant; or 



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APPROVED RULES 



(27) bulk gasoline terminals, including the storage and 
handling of fuel oils, kerosenes, and jet fuels but 
excluding the storage and handling of other organic 
liquids, that comply with 15A NCAC 2D .0524. 
.0925. .0927. .0932. and .0933 if the bulk gasoline 
terminal existed before November 1. 1992: unless: 

(A) the Director finds that a permit to emit toxic 
air pollutants is required under this Section 
for a particular bulk gasoline terminal, or 

(B) the owner or operator of the bulk gasoline 
terminal meets the requirements of 15A 
NCAC 2D .0927(i); 

(b) Emissions from the activities identified in 
Subparagraphs (a)(24) through (a)(27) of this Rule shall be 
included in determining compliance with the toxic air pollutant 
requirements in this Section and shall be included in the permit 
if necessary to assure compliance. 

(c) The addition or modification of an activity identified in 
Paragraph (a) of this Rule shall not cause the source or facility 
to be evaluated for emissions of toxic air pollutants. 

(d) Because an activity is exempted from being required to 
have a permit does not mean that the activity is exempted from 
any applicable requirement or that the owner or operator of the 
source is exempted from demonstrating compliance with any 
applicable requirement. 

History Note; Authority G.S. 143-215.3(a)(l); 143-215.108; 

143B-282; S.L. 1989, c. 168, s. 45; 

Eff.July 1, 1998; 

Rule originally codified as part of 15A NCAC 2H .0610; 

Amended Eff July 1. 2000. 

CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7H - STATE GUIDELINES FOR 
AREAS OF ENVIRONMENTAL CONCERN 

.1805 SPECIFIC CONDITIONS 

(a) The area in which this activity is being performed must 
maintain a slope of adequate grade so as to not endanger the 
public or the publics use of the beach and should follow the 
pre-emergency slopes as closely as possible. The movement 
of material by a bulldozer, front-end loader, backhoe, scraper 
or any type of earth moving or construction equipment shall 
not exceed 1 foot in depth measured from the pre-activity 
surface elevation. 

(h) The activity must not exceed the lateral hounds of the 
applicant's property unless he has the written permission of the 
adjoining landowner! s). 

(c) Movement of material from seaward of the mean high 
water line is not authorized. 

(d) The activity must not demonstratively increase erosion 
on neighboring properties. 

(e) Adding to dunes shall be accomplished in such a 
manner that the damage to existing vegetation is minimized. 



The fill areas will be immediately replanted or temporarily 
stabilized until planting can be successfully completed. 

(f) In order to minimize adverse impacts to nesting sea 
turtles, no work shall occur within the period of May 1 
through November 15 of any year, without the prior approval 
of the Division of Coastal Management, in coordination with 
the North Carolina Wildlife Resources Commission, the 
United States Fish and Wildlife Service and the United States 
Army Corps of Engineers, that the work can be accomplished 
without adversely impacting sea turtle nests or suitable nesting 
habitat. 

(g) If one contiguous acre or more of oceanfront property is 
to be excavated or filled, an erosion and sedimentation control 
plan must be filed with the Division of Land Resources. Land 
Quality Section, or appropriate local government having 
jurisdiction. This plan must be approved prior to commencing 
the land disturbing activity. 

HistoryNote: Authority G.S. U3-229(cl); U3A-107(a)(b); 
113A-1 13(b); 113A-118.1; 

Eff. December I. 1987; 

Temporary Amendment Eff. September 2. 1998; 

Amended Eff. August 1. 2000. 

CHAPTER 111 - WILDLIFE RESOURCES AND WATER 
SAFETY 

SUBCHAPTER 10F - MOTORBOATS AND WATER 
SAFETY 

SECTION .(1200 - SAFETY EQUIPMENT AND 
ACCIDENT REPORTS 

.0202 ACCIDENT REPORTS 

(a) "Boating Accident" Defined. For the purpose of this 
Regulation a "boating accident" means a collision, accident, 
casualty or occurrence involving a vessel or its equipment and 
resulting in damage by or to the vessel, its equipment, or other 
property: in injury or loss of life to any person: or in the 
disappearance of any person from a vessel under 
circumstances which indicate the possibility of death or injury. 
A "boating accident" includes, but is not limited to. capsizing, 
collision, foundering, flooding, fire, explosion and the 
disappearance of a vessel other than by theft. 

(b) Federal Regulations Adopted. As its regulations 
governing the reporting of boating accidents and notification 
of death or disappearance of persons from vessels operating on 
the waters of this State, the Wildlife Resources Commission 
incorporates by reference Subpart C of Part 173 of Title 33 of 
the Code of Federal Regulations, and includes subsequent 
amendments which will be published in the Federal Register. 

(c) Use of Report. The accident reports required under 
Paragraph (b) of this Rule shall be used in developing 
statistical data as to the causes and frequency of boating 
accidents, and in transmittal of information as required by G.S. 
75A- 1 2. No such report shall be admissible as evidence. 



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November 15. 1999 



857 



APPROVED RILES 



History Note: Authority G.S. 75A-3: 75A-11; 113-307:33 

C.F.R. 174.101 etseq.; 

Eff. February I. 1976: 

Amended Eff. November L 1999: August 1, 1988: May 1, 

1976. 

CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18A - SANITATION 

SECTION .1900 - SEWAGE TREATMENT AND 
DISPOSAL SYSTEMS 

.1938 RESPONSIBILITIES 

(a) The permitting of a wastewater system shall be the 
responsibility of agents authorized by the State in accordance 
with G.S. 130A-40, I30A-50, and registered with the State of 
North Carolina Board of Sanitarian Examiners if required in 
G.S. 90A Article 4. 

(b) The person owning or controlling the system shall be 
responsible for assuring compliance with the laws, rules, and 
permit conditions regarding system location, installation, 
operation, maintenance, monitoring, reporting, and repair. 

(c) Prior to the issuance of an Improvement Permit or 
Construction Authorization, plans and specifications may be 
required b\ the local health department where there is an 
unsuitable soil or unsuitable characteristic and shall be 
required for drainage systems serving two or more lots. These 
plans and specifications shall be required to be prepared by a 
person or persons who are licensed or registered to consult, 
investigate, evaluate, plan or design wastewater systems, soil 
and rock characteristics, ground water hydrology, or drainage 
systems if required in G.S. 89C. 89E. 89F. and 90A Article 4. 

(d) Any wastewater system which meets one or more of the 
following conditions shall be designed by a registered 
professional engineer if required by G.S. 89C: 

( 1 ) The system is designed to handle over 3.000 gallons 
per day, as determined in Rule .1949(a) or (b) of this 
Section, except where the system is limited to an 
individual septic tank system serving an individual 
dwelling unit or several individual septic tank 
systems, each serving an individual dwelling unit. 

(2) The system requires pretreatment before disposal, 
other than by a conventional septic or other system 
approved under Rule .1957 or .1969 of this Section. 

(3) The system requires use of sewage pumps prior to 
the septic tank or other pretreatment system, except 
for systems subject to the North Carolina Plumbing 
code or which consist of grinder pumps and 
associated pump basins that are approved and listed 
in accordance with standards adopted b\ the 
National Sanitation Foundation. 

(4) The individual system is required by Rule .1952 of 
this Section to use more than one pump or siphon in 
a single pump tank. 



(5) The system includes a collection sewer, prior to the 
septic tank or other pretreatment system, which 
serves two or more buildings, except for systems 
subject to the North Carolina Plumbing Code. 

(6) The system includes structures which have not been 
pre-engineered. 

(7) The system is designed for the collection, treatment 
and disposal of industrial process wastewater, 
except under the following circumstances: 

(A) the State has determined that the wastewater 
generated by the proposed facility has a 
pollutant strength which is lower than or 
equal to domestic sewage, and does not 
require specialized pretreatment or 
management, or 

(B) the State has pre-approved a predesigned 
pretreatment system or process and 
management method proposed by the facility 
owner which shall enable the industrial 
process wastewater to have a pollutant 
strength which is lower than or equal to 
domestic sewage. 

(8) Any other system serving a business or multi-family 
dwelling so specified by the local health department. 

(e) The State shall review and approve the system layout on 
a site plan or plat, plans and specifications for all systems 
serving a design unit with a design flow greater than 3.000 
gallons per day, as determined in Rule .1949(a) or (b) of this 
Section, except: 

( 1 ) where the system is limited to an individual septic 
tank system serving an individual dwelling unit or 
several individual septic tank systems, each serving 
an individual dwelling unit, or 

(2) where the system consists of individual septic tank 
systems, each serving an individual facility, and 
which meets all of the following criteria; 

(A) each individual system's design flow does not 
exceed 1500 gallons per day, as determined 
in Rule .1949(a) or (b) of this Section. 

(B) the site for the nitrification field and repair 
area for each individual system is at least 20 
feet from any other individual system site, 
and 

(C) the design wastewater loading on the lot or 
tract of land containing the design unit is less 
than 1 .500 gallons per day per acre for new or 
expanded systems and 3,000 gallons per 
day/acre for malfunctioning systems. 

(f) The state shall also review and approve plans and 
specifications for any industrial process wastewater system 
required by this Section to be designed by a registered 
professional engineer and any other system so specified by the 
local health department. 

(g) For systems that require State review and approval, an 
improvement permit shall not be issued unless the site plan or 
plat and system layout, including details for any proposed site 
modifications, are approved. A Construction Authorization 



858 



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November 15, 1999 



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APPROVED RULES 



shall not be issued unless plans and specifications, including 
methods of operation and maintenance, are approved. 

(h) Prior to issuance of the operation permit for a system 
required to be designed by a registered professional engineer. 
the owner shall submit to the local health department a 
statement signed by a registered professional engineer stating 
that construction is complete and in accordance with approved 
plans and specifications and approved modifications. Periodic 
observations of construction and a final inspection for design 
compliance by the certifying registered professional engineer 
or his representative shall be required for this statement. The 
statement shall be affixed with the registered professional 
engineers seal. 

(i) Plans and specifications required to be prepared by a 
registered professional engineer shall contain the information 
necessary for construction of the system in accordance with 
applicable rules and laws and shall include any of the 
following, determined to be applicable by the local health 
department or the State: 

( 1 ) the seal, signature, and the date on all plans and the 
first sheet of specifications; specifications and 
reports prepared by the design engineer and licensed 
or registered professionals who contributed to the 
plans, specifications, or reports; 

(2) a description of the facilities served and the 
calculations and basis for the design flow proposed; 

(3) a site plan based on a surveyed plat showing all 
system components, public water supply sources 
within 500 feet, private water supplies and surface 
water supplies within 200 feet, water lines serving 
the project and within 10 feet of all components, 
building foundations, basements, property lines, 
embankments or cuts of two feet or more in vertical 
height, swimming pools, storm sewers, interceptor 
drains, surface drainage ditches, and adjacent 
nitrification fields; 

(4) specifications describing all materials to be used, 
methods of construction, means for assuring the 
quality and integrity of the finished product, and 
operation and maintenance procedures addressing 
requirements for the system operator, inspection 
schedules, residuals management provisions, 
process and performance monitoring schedules, and 
provisions for maintaining mechanical components 
and nitrification field vegetative cover; 

(5) plan and profile drawings for collection sewers, 
force mains and supply lines, showing pipe 
diameter, depth of cover, cleanout and manhole 
locations, invert and ground surface elevations, 
valves and other appurtenances, lateral connections, 
proximity to utilities and pertinent features such as 
wells, water lines, storm drains, surface waters, 
structures, roads, and other trafficked areas; 

(6) plans for all tanks, showing capacity, invert and 
ground elevations, access manholes, inlet and outlet 
details, and plans for built-in-place or 



nonstate-approved, precast tanks, also showing 
dimensions, reinforcement details, liquid depth, and 
other pertinent construction features; 

(7) calculations for pump or siphon sizing, pump 
curves, and plan and profile drawings for lift 
stations and effluent dosing tanks, showing 
anti-buoyancy provisions, pump or siphon locations, 
discharge piping, valves, vents, pump controls, 
pump removal system, electrical connection details, 
and activation levels for pumps or siphons and 
high-water alarms; 

(8) plan and profile drawings for wastewater treatment 
plants and other pretreatment systems, including 
cross-section views of all relevant system 
components, and data and contact lists from 
comparable facilities for any non-standard systems; 

(9) plans for nitrification field and repair area, based on 
an evaluation and report prepared by a person 
licensed or registered to practice soil science, if 
required in G.S. 89F showing the following: 

(A) field locations with existing and final relative 
contour lines based on field measurements at 
intervals not exceeding two feet or spot 
elevations if field areas are essentially flat or 
of uniform grade; 

(B) field layout, pipe sizes, length, spacing, 
connection and clean out details, invert 
elevations of flow distribution devices and 
laterals, valves, and appurtenances; 

(C) trench plan and profile drawings and flow 
distribution device details; and 

(D) location and design of associated surface and 
groundwater drainage systems; and 

(10) any other information required by the local health 
department or the State. 

(j) The entire wastewater sewage system shall be on 
property owned or controlled by the person owning or 
controlling the system. Necessary easements, right of ways, or 
encroachment agreements, as applicable, shall be obtained 
prior to the issuance of a Construction Authorization for the 
system installation or repair. Terms of the easement, right-of- 
way or encroachment agreement shall provide that the 
easement, right-of-way, or encroachment agreement: 

( 1 ) is appurtenant to specifically described property and 
runs with the land and is not affected by change of 
ownership or control; 

(2) is valid for as long as the wastewater system is 
required for the facility that it is designed to serve; 

(3) describes and specifies the uses being granted and 
shall include ingress and egress, system installation, 
operation, maintenance, monitoring, and repairs: 

(4) specifies by metes and bounds description or 
attached plat, the area or site required for the 
wastewater system and appurtenances including a 
site for any required system replacement; and 



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November 75, 7999 



859 



APPROVED RULES 



(5) shall be recorded with the register of deeds in the 
count) where the system and facility is located. 

Historx Note: Authority G.S. 89C: 89E; 89F: 90A; 130A- 

335(e),(f); 

Eff.Julyl, 1982: 

Amended Eff. January 1. 1990: April 1. 1985: 

Temporary Amendment Eff. January 20, 1997: 

Amended Eff. November 1, 1999; August 1. 1998. 

.1952 SEPTIC TANK, EFFLUENT FILTER, DOSING 
TANK AND LIFT STATION DESIGN 

(a) A septic tank or dosing tank shall be watertight, 
structurally sound, and not subject to excessive corrosion or 
decay. Septic tanks shall be of two-compartment design. The 
inlet compartment of a two-compartment tank shall hold 
between two-thirds and three-fourths of the total tank capacity. 
Septic tanks shall have an approved effluent filter and access 
devices. The effluent filter shall function without a bypass of 
unfiltered wastewater, sludge or scum. The effluent filter case 
shall be designed to function as a sanitary tee with the inlet 
extending down to between 25 and 40 percent of the liquid 
depth. The requirement! s) tor an effluent filter and access 
devices shall apply to septic tanks for which a Construction 
Authorization is issued on or after January 1. 1999. A 
properly designed dosing siphon or pump shall be used for 
discharging sewage effluent into nitrification lines when the 
total length of such lines exceeds 750 linear feet in a single 
system and as required for any pressure-dosed system. When 
the design daily How from a single system exceeds 3,000 
gallons per day or when the total length of nitrification lines 
exceeds 2.000 linear feet in a single system, alternating 



siphons or pumps shall be used which shall discharge to 
separate nitrification fields. The dose volume from pump or 
siphon systems shall be of such design so as to fill the 
nitrification lines from 66 percent to 75 percent of their 
capacity at each discharge except as required for low-pressure 
distribution systems. The discharge rate from dosing systems 
shall be designed to maximize the distribution of the effluent 
throughout the nitrification field. Septic tanks installed where 
the top will be deeper than six inches below the finished grade 
shall have an access manhole over each compartment with 
cover, extending to within six inches of the finished grade, 
having a minimum opening adequate to accommodate the 
installation or removal of the septic tank lid, septage removal, 
and maintenance of the effluent filter. When the top of the 
septic tank or access manhole is below the finished grade, the 
location of each manhole shall be visibly marked at finished 
grade. Any system serving a design unit with a design sewage 
flow greater than 3.000 gallons per day shall have access 
manholes that extend at least to finished grade and be designed 
and maintained to prevent surface water inflow. The manholes 
shall be sized to allow proper inspection and maintenance. All 
dosing tanks shall have a properly functioning high-water 
alarm. The alarm shall be audible and visible by system users 
and weatherproof if installed outdoors. The alarm circuit shall 
be provided with a manual disconnect in a watertight, 
corrosion-resistant outside enclosure (NEMA 4X or 
equivalent) adjacent to the dosing tank. 

(b) Minimum liquid capacities for septic tanks shall be in 
accordance with the following: 

(1) Residential Septic Tanks (for each individual 
residence or dwellimi unit): 



Number of 

Bedrooms 

3 or less 

4 

5 



Minimum Liquid 
Capacity 
900 gallons 
1 .000 gallons 
1.250 gallons 



Equivalent Capacity 
Per Bedroom 

300 gallons 
250 gallons 
250 gallons 



(2) Septic tanks for large residences, multiple dwelling 
units, or places of business or public assembly shall 
be in accordance with the following: 

(A) The liquid capacity of septic tanks for places 
of business or places of public assembly with 
a design sewage flow of 600 gallons per day 
or less shall be determined in accordance with 
the following: V = 2Q: where V is the liquid 
capacity of the septic tank and Q is the design 
daily sewage flow. However, the minimum 
capacity of any septic tanks shall be 750 
gallons. 

(B) Individual residences with more than five 
bedrooms, multiple-family residences, 
individual septic tank systems serving two or 
more residences, or any place of business or 
public assembly where the design sewage 
flow is greater than 600 gallons per day. but 



less than 1.500 gallons per day. the liquid 
capacity of the septic tank shall be designed 
in accordance with the following: V = 1.1 7Q 
+ 500; where V is the liquid capacity of the 
septic tank and Q is the design daily sewage 
flow. The minimum liquid capacity of a 
septic tank serving two or more residences 
shall be 1.500 gallons. 

(C) Where the design sewage flow is between 
1,500 gallons per day and 4.500 gallons per 
day. the liquid capacity of the septic tank 
shall be designed in accordance with the 
following: V = 0.75Q + 1.125: where V is 
the liquid capacity of the septic tank and Q is 
the design daily sewage flow. 

(D) Where the design sewage flow exceeds 4.500 
gallons per day. the septic tank shall be 
designed in accordance with the following: V 



860 



NORTH CAROLINA REGISTER 



November 15, 1999 



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APPROVED RILES 



- Q; where V is ihe liquid capacity of the 
septic tank and Q is the design daily sewage 
How. 
(E) The minimum liquid capacity requirements of 
Subparagraph (b)(2) of this Rule shall be met 
by use of a single two-compartment septic 
tank or by two tanks installed in series, 
provided the first tank is constructed without 
a baffle wall and contains at least two-thirds 
of the total required liquid capacity. 
(c) The following are minimum standards of design and 
construction of pump tanks and pump dosing systems: 

( 1 ) The liquid capacity of a pump tank shall be 
considered as the entire internal volume with no 
additional requirement for freeboard. Pump tanks 
shall have a minimum liquid capacity in accordance 
with the following: 

(A) Pump tanks for systems with nitrification (2) 
fields installed in Soil Group I. II. or III soils, 

as defined in these Rules, shall have a 
minimum liquid capacity equal to two-thirds 
of the required septic tank liquid capacity. 

(B) Pump tanks for systems installed in Group IV 
soils shall have a minimum liquid capacity 
equal to the required septic tank liquid 
capacity. (3) 

(C) The minimum liquid capacity of any pump 
tank shall be 750 gallons. 

(D) An alternate method to determine minimum 
liquid capacity of a pump tank shall be to 
provide for the minimum pump submergence 
requirement (Subparagraph (c)(5) of this 
Rule), the minimum dose volume requirement 
(Paragraph (a) of this Rule), and the 
minimum emergency storage capacity 
requirement. The emergency storage capacity 
requirement is determined based on the type 

of facility served, the classification of surface (4) 

waters which would be impacted by a pump 

tank failure, and the availability of standby 

power devices and emergency maintenance 

personnel. The emergency storage capacity 

shall be the freeboard space in the pump lank 

above the high-water alarm activation level 

plus the available freeboard space in previous 

tankage and in the collection system below 

the lowest ground elevation between the 

pump tank and the lowest connected building 

drain invert. The minimum emergency (5) 

storage capacity for residential systems and 

other systems in full-time use on sites 

draining into WS-I. WS-II. WS-III, SA. SB, 

and B waters shall be 24 hours, without 

standby power, or 12 hours with standby 

power manually activated, or four hours with 

standby power automatically activated or 



with a high-water alarm automatically 

contacting a 24-hour maintenance service. 

The minimum emergency storage capacity for 

systems not in full-time use and for all 

systems at sites draining into all other surface 

waters shall be 12 hours without standby 

power, or eight hours with standby power 

manually activated, or four hours with 

standby power automatically activated or 

with a high-water alarm automatically 

contacting a 24-hour maintenance service. 

(E) Notwithstanding Paragraphs (c)( 1 )( A)-(D), 

other criteria for pump tank capacity may be 

approved by the local health department and 

the State for raw sewage lift stations, pressure 

sewer systems, and systems with design 

flows exceeding 3.000 gallons per day. 

The effluent pump shall be capable of handling at 

least one-half inch solids and designed lo meet the 

discharge rate and total dynamic head requirements 

of the effluent distribution system. The pump shall 

be listed by Underwriter's Laboratory or an 

equivalent third party electrical testing and listing 

agency, unless the proposed pump model is 

specified by a registered professional engineer. 

Pump discharge piping shall be of Schedule 40 PVC 

or stronger material and adequately secured. 

Fittings and valves shall be of compatible 

corrosion-resistant material. A threaded union. 

flange, or similar disconnect device shall be 

provided in each pump discharge line. All 

submersible pumps shall be provided with a 

corrosion-resistant rope or chain attached to each 

pump enabling pump removal from the ground 

surface without requiring dewatering or entrance 

into the tank. Valves shall also be readily accessible 

from the ground surface. 

Antisiphon holes (three-sixteenth inch) shall be 
provided when the discharge or invert elevation of 
the distribution system is below the high-water 
alarm elevation in the pump tank, or in accordance 
with pump manufacturer's specifications. Check 
valves shall be provided when the volume of the 
supply line is greater than 25 percent of the dosing 
volume, or in accordance with pump manufacturer's 
specifications. When provided, the antisiphon hole 
shall be located between the pump and the check 
valve. 

Sealed mercury control floats or similar devices 
designed for detecting liquid levels in septic tank 
effluent shall be provided to control pump cycles. A 
separate level sensing device shall be provided to 
activate the high- water alarm. Pump-off level shall 
be set to keep the pump submerged at all times or in 
accordance with the manufacturer's specifications. 
A minimum of 12 inches of effluent shall be 



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November 15, 1999 



861 



APPROVED RULES 



maintained in the bottom of the pump tank. The 
high-water alarm float shall be set to activate within 
six inches of the pump-on level. The lag pump float 
switch, where provided, shall be located at or above 
the high-water alarm activation level. 

(6) Pump and control circuits shall be provided with 
manual circuit disconnects within a watertight. 
corrosion-resistant, outside enclosure (NEMA 4X or 
equivalent) adjacent to the pump tank, securely 
mounted at least 12 inches above the finished grade. 
The pump(s) shall be manually operable without 
requiring the use of special tools or entrance into the 
tank for testing purposes. Conductors shall be 
conveyed to the disconnect enclosure through 
waterproof, gasproof, and corrosion-resistant 
conduits, with no splices or junction boxes provided 
inside the tank. Wire grips, duct seal, or other 
suitable material shall be used to seal around wire 
and wire conduit openings inside the pump tank and 
disconnect enclosure. 

(7) For systems requiring duplex and multiplex pumps, 
a control panel shall be provided which shall include 
short-circuit protection for each pump and for the 
control system, independent disconnects, automatic 
pump sequencer, hand-off-automatic (H-O-A) 
switches, run lights, and elapsed time counters for 
each pump. Alarm circuits shall be supplied ahead 
of any pump overload or short circuit protective 
devices. The control panel must be in a watertight, 
corrosion-resistant enclosure (NEMA 4X or 
equivalent) unless installed within a weathertight 
building. The panel shall be protected from intense 
solar heating. 

(8) Dual and multiple fields shall be independently 
dosed by separate pumps which shall automatically 
alternate. The supply lines shall be "H" connected 
to permit manual alternation between fields dosed 
by each pump. "H" connection valving shall be 
readily accessible from the ground surface, either 
from the pump tank access manhole or in a separate 
valve chamber outside the pump tank. Other 
equivalent methods of dosing dual or multiple fields 
may be approved by the State. 

(9) The pump tank shall have a properly functioning 
high-water alarm. The alarm circuit shall be 
supplied ahead of any pump overload and short 
circuit protective devices. The alarm shall be 
audible and visible by system users and 
weatherproof if installed outdoors in an enclosure 
(NEMA 4X or equivalent). 

(d) Siphons and siphon dosing tanks may be used when at 
least two feet of elevation drop can be maintained between the 
siphon outlet invert and the inlet invert in the nitrification field 
distribution system. 

( 1 ) Siphon dosing tanks shall be designed in accordance 
with the minimum dose requirements in this Rule 
and shall meet the construction requirements of this 



Section. The siphon dose lank shall provide at least 
12 inches of freeboard, and the inlet pipe shall be at 
least three inches above the siphon trip level. The 
high-water alarm shall be set to activate within two 
inches of the siphon trip level. 

(2) Siphon dosing tanks shall have a watertight access 
opening over each siphon with a minimum diameter 
of 24 inches and extending to finished grade and 
designed to prevent surface water inflow. 

(3) The slope and size of the siphon discharge line shall 
be sufficient to handle the peak siphon discharge by 
gravity flow without the discharge line flowing full. 
Vents for the discharge lines shall be located outside 
of the dosing tank or otherwise designed to not 
serve as an overflow for the tank. 

(4) All siphon parts shall he installed in accordance 
with the manufacturer's specifications. All materials 
must be corrosion-resistant, of cast iron, high 
density plastic, fiberglass, stainless steel, or equal. 

(5) Siphon dosing tanks shall have a properly 
functioning high-water alarm that is audible and 
visible by system users and weatherproof if installed 
outdoors in an enclosure (NEMA 4X or equivalent). 

(e) Raw sewage lift stations shall meet the construction 
standards of this Section and all horizontal setback 
requirements for sewage treatment and disposal systems in 
accordance with Rule .1950(a) of this Section unless the 
station is a sealed, watertight chamber, in which case the 
setback requirements for collection sewers in Rule .1950(e) of 
this Section shall apply. Sealed, watertight chambers shall be 
of a single, prefabricated unit, such as fiberglass, with sealed 
top cover, and preformed inlet and outlet pipe openings 
connected with solvent welds, O-ring seals, rubber boots, 
stainless steel straps, or equivalent. Dual pumps shall be 
provided for stations serving two or more buildings or for a 
facility with more than six water closets. Pumps shall be listed 
by Underwriters Laboratories or an equivalent third party 
electrical testing and listing agency, and shall be grinder 
pumps or solids-handling pumps capable of handling at least 
three-inch spheres unless the station serves no more than a 
single water closet, lavatory, and shower, in which case 
two-inch solids handling pumps shall be acceptable. 
Minimum pump capacity shall he 2.5 times the average daily 
flow rate. The dosing volume shall be set so that the pump-off 
time does not exceed 30 minutes, except for stations serving 
single buildings, and pump run-time shall be from three to ten 
minutes at average flow. Pump station emergency storage 
capacity and total liquid capacity shall be determined in 
accordance with Paragraph (c)( 1 )(D) of this Rule except for a 
sealed, watertight chamber serving an individual building, in 
which case a minimum storage capacity of eight hours shall be 
required. All other applicable requirements for pump tanks 
and pump dosing systems in accordance with Paragraph (c) of 
this Rule shall also apply to raw sewage lift stations. 

Histon-Note: Authority G.S. 130A-335 (e), (f) and 
(fill 2ml j: 



862 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



APPROVED RULES 



Eff.July 1. 1982; 

Amended Eff. August 1. 1991; January I. 1990; 
Temporary Amendment Eff. January 1. 1999; 
Amended Eft'. August L -<><><>■ 

.1954 MINIMUM STANDARDS FOR PRECAST 
REINFORCED CONCRETE TANKS 

(a) The following are minimum standards of design and 
construction of precast reinforced concrete septic tanks: 

( 1 ) The minimum requirement for the liquid depth is 36 
inches. 

(2) A minimum of nine inches freeboard is required, the 
freeboard being the air space between the top of the 
liquid and the bottom side of the lid or cap of the 
tank. 

(3) The length of the septic tank shall be at least twice 
as long as the width. 

(4) There shall be three inlet openings in the tank, one 
on the tank end and one on each sidewall of the inlet 
end of the tank. The blockouts for these openings 
shall leave a concrete thickness of not less than one 
inch in the tank wall. The blockouts shall be made 
for a minimum of four-inch pipe or a maximum of 
six-inch pipe. The outlet pipe penetration of the 
tank shall be through a resilient, watertight, sealed. 
non-corrosive and flexible connective sleeve. The 
outlet pipe penetration shall he precast to be 
compatible with the connective sleeve. No pipe 
penetration points or openings shall be permitted 
below the tank liquid level. 

(5) The inlet pipe in the tank shall be a straight pipe. 

(6) The outlet shall be through an approved effluent 
filter secured in place in an effluent filter support 
case. The effluent filler support case shall serve as a 
functioning sanitary tee with the bottom inlet 
extending down between 25 and 40 percent of the 
liquid depth. The approved effluent filter and 
support case shall be furnished by the septic tank 
manufacturer. The invert of the outlet shall be at 
least two inches lower in elevation than the invert of 
the inlet. 

(7) Other equivalent methods of supporting the effluent 
filter and for making the pipe penetrations shall be 
approved by the On-Site Wastewater Section. 

(8) In order to obtain approval of an effluent filter, the 
filter manufacturer shall submit to the State the 
following information with supporting 
documentation: 

(A) For each septic tank system that is designed 
to treat 3.000 gallons per day or less of 
sewage, a written certification that the 
effluent filter is designed, constructed, and 
performs in compliance with G.S. 130A- 
335.1(a)(l)(2)(3), and (4); 



(B) Sizing as to capacity and wastewater strength 
for all models of proposed filters to be 
approved: and 

(C) Specifications for application, installation, 
operation, and maintenance. 

(9) All tanks shall be manufactured with a cast-in-place 
partition so that the tank contains two 
compartments. The partition shall he located at a 
point not less than two-thirds nor more than 
three-fourths the length of the tank from the inlet 
end. The top of the partition shall terminate two 
inches below the bottom side of the tank top in order 
to leave space for air or gas passage between 
compartments. The top and bottom halves of the 
partition shall be cast in such manner as to leave a 
water passage slot four inches high for the full width 
of the tank. The partition (both halves) shall be 
reinforced by the placing of six-inch by six-inch No. 
10 gage welded reinforcing wire. The reinforcing 
wire shall be bent to form an angle of 90 degrees on 
the ends in order to form a leg not less than four 
inches long. When the wire is placed in the mold 
the four-inch legs should lay parallel with the 
sidewall wire and adjacent to it. It is recognized that 
there are other methods of constructing a partition or 
two-compartment tank. Any method other than the 
one described will be considered on an individual 
basis lor approval by the On-Site Wastewater 
Section. However, the tank wall thickness must 
remain not less than two and one-half inches thick 
throughout the tank except for the pipe penetrations. 
(10) Adequate access openings must be provided in the 
tank top. Access shall be provided for cleaning or 
rodding out of the inlet pipe, for cleaning or clearing 
the air or gas passage space above the partition, for 
pumping of each compartment, and for the 
maintenance of the effluent filler. This shall be 
accomplished by properly locating two manholes or 
access openings with each having a minimum 
opening of 15 inches by 15 inches or 17 inches in 
diameter as the opening cuts the plane of the bottom 
side of the top of the tank or other equidimensional 
opening with at least 225 square inches. The 
manhole covers shall be beveled on all sides in such 
manner as to accommodate a uniform load of 150 
pounds per square foot without damage to the cover 
or the top of the tank. If the top of the tank is to be 
multislab construction, the slabs over the inlet of the 
tank, partition, and outlet of the tank must not weigh 
in excess of 150 pounds each. Multislab 
construction allows for the elimination of the 
manholes. Manhole covers, tank lids, access 
opening covers, or slabs shall have a handle of steel 
or other rot-resistant material equivalent in strength 
to a No. 3 reinforcing rod irebar). 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



863 



APPROVED RULES 



(11) The concrete tank and tank lid shall be reinforced by 
using a minimum reinforcing of six-inch by six-inch 
No. 10 gage welded steel reinforcing wire in the top, 
bottom ends, and sides of the tank. The reinforcing 
wire shall be lapped at least six inches. Concrete 
cover shall be required for all reinforcement. 
Reinforcement shall be placed to maximize the 
structural integrity of the tank. The tank, tank lid, 
riser and riser cover shall be able to withstand a 
uniform live loading of 150 pounds per square foot 
in addition to all loads to which an underground 
tanks, riser, or riser cover is normally subjected, 
such as the dead weight of the concrete and soil 
cover, active soil pressure on tank walls, and the 
uplifting force of the ground water. Additional 
reinforcement shall be required when the loads on a 
concrete tank, riser, or riser cover are exceeded by 
subjecting it to vehicular traffic or when the top of 
the tank is placed deeper than three feet below the 
finished grade. 

(12) The top, bottom, ends, and sides of the tank must 
have a minimum thickness of two and one-half 
inches. 

(13) A minimum 28-day concrete compressive strength 
of 3.500 pounds per square inch shall be used in the 
construction of the septic tank, concrete access riser 
and riser cover. The concrete shall achieve a 
minimum compressive strength of 3.000 pounds per 
square inch prior to removal of the tank from the 
place of manufacture. It shall be the responsibility 
of the manufacturer to certify that this condition has 
been met prior to shipment. A septic tank shall be 
subject to testing to ascertain the strength of the 
concrete prior to its being approved for installation. 
Recognized devices for testing the strength of 
concrete include a properly calibrated Schmidt 
Rebound Hammer or Windsor Probe Test. 
Accelerated curing in the mold by use of propane 
gas or other fuels is prohibited, except in accordance 
with accepted methods and upon prior approval of 
the State. 

(14) After curing, tanks manufactured in two sections 
and as required, concrete risers shall be joined and 
sealed at the joint by using a mastic, butyl rubber, or 
other pliable sealant that is waterproof, 
corrosion-resistant, and approved for use in septic 
tanks. The sealant shall have a minimum size of one 
inch nominal diameter or equivalent. Before 
sealing, the joint shall be smooth, intact, and free of 
all deleterious substances. Tank halves shall be 
properly aligned to ensure a tight seal. The sealant 
shall be provided by the manufacturer. 

(15) All tanks produced shall bear an imprint identifying 
the manufacturer, the serial number assigned to the 
manufaeturer'splans and specifications approved by 
the State, and the liquid or working capacity of the 
tanks. This imprint shall be located to the right of 



the blockout made for the outlet pipe on the outlet 
end of the tank. All tanks shall also be permanently 
marked with the date of manufacture adjacent to the 
tank imprint or on the top of the tank directly above 
the imprint. 
(16) Risers and access covers shall have a clear opening 
sized to allow for maintenance and removal of 
internal devices of the septic tank and shall not 
allow accidental entry. The access cover and tank 
lid shall be designed, constructed, and maintained to 
prevent unauthorized access. Risers shall be sealed 
watertight where they join the top of the septic tank, 
and constructed to prevent water inflow through the 
lid or cover, 
(b) Pump tanks shall meet the construction requirements of 
Paragraph (a) of this Rule with the following modifications. 

( 1 ) Tanks shall be cast with a single compartment, or, if 
a partition is provided, the partition shall be cast to 
contain a minimum of two four-inch diameter 
circular openings, or equivalent, located no more 
than 12 inches above the tank bottom. 

(2) There shall be no requirement as to tank length, 
width, or shape, provided the tank satisfies all other 
requirements of this Section. 

(3) The invert of the inlet openings shall be located 
within 12 inches of the tank top. No freeboard shall 
be required in the pump tank. 

(4) After joining, tanks manufactured in two sections 
shall be plastered along the joint with hydraulic 
cement, cement mortar, or other waterproofing 
sealant. Other methods of waterproofing tanks may 
be used as specifically approved in the plans and 
specifications for the tank. Prior to backfilling, the 
local health department shall make a finding that a 
two section tank is watertight if a soil wetness 
condition is present within five feet of the elevation 
of the top of the tank. 

(5) Tanks shall be vented and accessible for routine 
maintenance. A watertight access manhole with 
removable lid shall be provided over the pump with 
a minimum diameter of 24 inches. The access 
manhole shall extend at least to six inches above 
finished grade and be designed and maintained to 
prevent surface water inflow. Larger or multiple 
manholes shall be provided when two or more 
pumps are required. Pumps shall be removable 
without requiring entrance into the tank. Manhole 
lids and electrical controls shall be secured against 
unauthorized access. Manhole risers shall be joined 
to the tank top and sealed in accordance with 
Paragraphs (a)(14) and (b)(4) of this Rule. 

(6) All pump tanks shall bear an imprint identifying the 
manufacturer, pump tank serial number assigned by 
the Division of Environmental Health, and the liquid 
or working capacity of the tank. The imprint shall 
be located to the left of the outlet blockout. All 
tanks shall also be permanently marked with the 



864 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



APPROVED RULES 



date of manufacture adjacent to the tank imprint or 
on the top of the tank directly ahove the imprint. 

(c) Plans for prefabricated tanks, risers and riser covers, 
other than those approved under Paragraph (a I or (b) of this 
Rule shall be approved on an individual basis as determined 
by the information furnished by the designer which indicates 
the tank, riser or riser cover will provide equivalent 
effectiveness as those designed in accordance with the 
provisions of Paragraphs (a) and (b) of this Rule. 

(d) Tanks other than approved prefabricated tanks shall be 
constructed consistent w ith the provisions of this Rule except 
as follows: 

( 1 ) Cast-in-place concrete septic and pump tanks shall 
have a minimum wall thickness of six inches 

(2) Concrete block or brick masonry tanks shall have a 
minimum wall thickness of at least six inches when 
the design volume is less than 1.000 gallons and a 
minimum wall thickness of at least eight inches 
when the design volume is 1.000 gallons or more. 
All joints between masonry units shall be mortared 
using masonry cement mortar or equivalent. The 
joints shall have a nominal thickness of 
three-eighths inch. All concrete block masonry 
tanks shall have a minimum wall reinforcement of 
number three reinforcing bars on 20-inch centers, or 
equivalent. The maximum allowable reinforcement 
spacing in cither direction shall be four feet. All 
block wall cores shall be filled with concrete with a 
minimum compressive strength of 3.000 pounds per 
square inch. All tanks constructed of block or brick 
shall be plastered on the inside with a 1:3 mix (one 
part cement, three parts sand) of Portland cement at 
least three-eighths inch thick or the equivalent using 
other approved waterproofing material. 

(3) The bottom of the built-in-place tank shall be poured 
concrete with a minimum thickness of four inches. 
All built-in-place tanks shall be reinforced to satisfy 
the structural strength requirements of Paragraph 
(a)(9) of this Rule. Reinforcement shall be placed in 
both directions throughout the entire tank, including 
top, bottom, walls, and ends. 

(e) Manufacturers of septic tanks, effluent filters, pump 
tanks, risers, and riser locators shall comply with the General 
Statutes, this Section, and Approval conditions. II the 
approved products or materials are found to be in non- 
compliance, the Operation Permit shall not be issued or shall 
be denied. The State shall suspend or revoke the product 
approval upon a finding that the information submitted is 
falsified, the product has been subsequently altered, or 



subsequent experience with the product results in altered 
conclusions about its design or performance. Suspension or 
revocation of the product approval shall not affect systems 
.previously installed pursuant to the approval. 

History Note: Authority G.S. 130A-335 (e), if) and 

(fl)[2nd]; 

Eff. July 1. 1982: 

Amended Eff. August I. 1991; January I, 1990; 

Temporary Amendment Eff. January 1, I99S); 

Amended Eff. August L 2000. 

.1955 DESIGN AND INSTALLATION CRITERIA 
FOR CONVENTIONAL SEWAGE SYSTEMS 

(a) Conventional septic tank systems shall utilize a septic 
tank of approved construction with an approved effluent filter 
and support case, access devices, and design volume which 
provides primary treatment of the sewage in accordance with 
the provisions of these Rules. The effluent filter support case 
shall be solvent welded to a PVC Schedule 40 outlet pipe with 
a minimum diameter of three inches inserted through the outlet 
connective sleeve creating a watertight and mechanically 
sound joint and shall extend at least 24 inches beyond the tank 
outlet. The filter and support case shall be installed and 
maintained in accordance with the filter manufacturer's 
specifications. The effluent filter shall be accessible without 
the operator entering the septic tank and removable b\ hand. 
The effluent filter shall be secured in the support case and 
located under the outlet access opening or manhole. When the 
top of the septic tank or access manhole is installed below 
finished grade, the location of each access opening or manhole 
shall be visibly marked at finished grade. The visible 
marker! s) shall be located over or within a five foot radius of 
each access opening or manhole. The marker! s) shall be 
identified as a septic tank locator. When not placed over each 
access opening or manhole, the marker! s) shall indicate 
location of tank access opening(s) or manhole(s). The filtered 
effluent from the septic tank shall be conveyed to an approved 
nitrification line where the soil provides for final treatment and 
disposal of the sewage. 

(b) Table II shall be used in determining the maximum 
long-term acceptance rate for septic tank systems of 
conventional trench design. The long-term acceptance rate 
shall be based on the most hydraulically limiting naturally 
occurring soil horizon within three feet of the ground surface 
or to a depth of one foot below trench bottom, whichever is 
deeper. 



TABLE II 



SOIL GROUP 



Sands 



SOIL TEXTURE CLASSES 
(USDA CLASSIFICATION) 

Sand 



LONG-TERM 
ACCEPTANCE RATE 

gpd/fr 

1.2-0.8 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



865 



APPROVED RULES 



II 



III 



IV 



(With S or PS 


Loamy Sand 


structure and 




clay mineralogy) 




Coarse Loams 


Sandy Loam 


(With S or PS 


Loam 


structure an 




clay mineralogy) 




Fine Loams 


Sandy Clay Loam 


(With S or PS 


Silt Loam 


structure and 


Clay Loam 


clay mineralogy) 


Silty Clay Loam 




Silt 


Clays 


Sandy Clay 


(With S or PS 


Silty Clay 


structure and 


Clay 


clay mineralogy) 






(1) 


rate shall not exceed the 


mean rate (2) 



0.8 - 0.6 



0.6 - 0.3 



for the applicable soil group for food service facilities, meat 
markets, and other places of business where accumulation of 
grease can cause premature failure of a soil absorption system. 
Long-term acceptance rates up to the maximum for the 
applicable soil group may be permitted for facilities where 
data from comparable facilities indicates that the grease and oil 
content of the effluent will be less than 30 mg/1 and the 
chemical oxygen demand (COD) will be less than 500 mg/1. 

(c) The design daily sewage flow shall be divided by the 
long-term acceptance rate to determine the minimum area of 
nitrification trench bottom. The total length of the nitrification 
line shall be determined by dividing the required area of 
nitrification trench bottom by the trench width, not to exceed 
36 inches. Trenches shall be located not less than three times 
the trench width on centers with a minimum spacing of five 
feet on centers. 

(d) The local health department may permit the use of a bed 
system on sites where the soil texture can be classified into 
either Soil Groups I. II, or III, meeting the other requirements 
of this Section, and only on lots which are limited by 
topography, space, or other site-planning considerations. In 
such cases, the number of square feet of bottom area needed 
shall be increased by 50 percent over what would be required 
for a trench system. Nitrification lines shall be at least 18 
inches from the side of the bed and shall have lines on 
three-foot centers. When the design daily flow exceeds 600 
gallons per day, bed systems shall not be used. 

(e) The pipe or tubing used between the septic tank and the 
nitrification line shall be a minimum of three-inch nominal 
size Schedule 40 polyvinyl chloride (PVC), polyethylene (PE), 
or acrylonitrile-butadiene-styrene (ABS) or equivalent with a 
minimum fall of one-eighth inch per foot. However, 
three-inch or greater nonperforated polyethylene (PE) 
corrugated tubing may be substituted for Schedule 40 pipe 
between a distribution device and the nitrification line if the 
following conditions are met: 



0.4-0.1 



the trench has a minimum bottom width of one foot; 
the trench bed is compacted, smooth, and at a 
uniform grade; 

(3) the pipe is placed in the middle of the trench with a 
minimum of three inches of clearance between the 
pipe and the trench walls: 

(4 ) washed stone or washed gravel envelope is placed in 
the trench on both sides of the pipe and up to a point 
at least two inches above the top of the pipe; 

( 5 ) a minimum of six inches of soil cover is placed and 
compacted over the stone or gravel envelope; and 

(6) earthen dams consisting of two feet of undisturbed 
or compacted soil are placed at both ends of the 
trench separating the trench from the distribution 
device and the nitrification line. 

All joints from the septic tank to the nitrification line shall be 
watertight. 

(f) When four or six-inch diameter corrugated plastic tubing 
is used for nitrification lines, it shall be certified as complying 
with ASTM F 405, Standard Specification for Corrugated 
Polyethylene (PE) Tubing and Fittings, which is hereby 
adopted by reference in accordance with G.S. 150B-21.6. The 
corrugated tubing shall have three rows of holes, each hole 
between one-half inch and three-fourths inch in diameter, and 
spaced longitudinally approximately four inches on centers. 
The rows of holes may be equally spaced 120 degrees on 
centers around the periphery, or three rows may be located in 
the lower portion of the tubing, the outside rows being 
approximately on 120-degree centers. The holes may be 
located in the same corrugation or staggered in adjacent 
corrugations. Other types of pipe may be used for nitrification 
lines provided the pipe satisfies the requirements of this 
Section for hole size and spacing and the pipe has a stiffness 
equivalent to corrugated polyethylene tubing (ASTM F-405) 
or stronger. The nitrification line shall be located in the center 
of the nitrification trench. 

(g) Nitrification trenches shall be constructed as level as 
possible but in no case shall the fall in a single trench bottom 



866 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



APPROVED RULES 



exceed one-fourth inch in 1(1 feel as determined h\ an 
engineer's level or equivalent. When surface slopes are greater 
than two percent, the bottom of the nitrification trenches shall 
follow the contour of the ground. An engineer's level or 
equi\alent shall be used for installation and inspection. The 
nitrification trench shall not exceed a width of three feet and a 
depth of three feet, except as approved by the local health 
department. 

(h) Rock used in soil absorption systems shall be clean, 
washed gravel or crushed stone and graded or sized in 
accordance with size numbers 3, 4, 5, 57 or 6 of ASTM D-448 
(standard sizes of coarse aggregate) which is hereby adopted 
by reference in accordance with G.S. 1 50B-2 1 6. Copies may 
be inspected in. and copies obtained from the Division of 
Environmental Health. PO Box 27687. Raleigh. North 
Carolina 2761 1-7687. The rock shall be placed a minimum of 
one foot deep with at least six inches below the pipe and two 
inches over the pipe and distributed uniformly across the 
trench bottom and over the pipe. 

(i) The soil cover over the nitrification field shall be to a 
depth of at least six inches. The finished grade over the 
nitrification field shall be landscaped to prevent the ponding of 
surface water and runoff of surface water shall be diverted 
away from the nitrification field. Soil cover above the original 
grade shall be placed at a uniform depth over the entire 
nitrification field, except as required to prevent the ponding of 
surface water, and shall extend laterally five feet beyond the 
nitrification trench. The soil cover shall be placed over a 
nitrification field only after proper preparation of the original 
ground surface. The type of soil cover and placement shall be 
approved by the local health department. 

(j) Effluent distribution devices, including distribution 
boxes, flow dividers, and flow diversion devices, shall be of 
sound construction, watertight, not subject to excessive 
corrosion, and of adequate design as approved by the local 
health department. Effluent distribution devices shall be 
separated from the septic tank and nitrification lines by a 
minimum of two feet of undisturbed or compacted soil and 
shall be placed level on a solid foundation of soil or concrete 
to prevent differential settlement of the device. The installer 
shall demonstrate that the distribution devices perform as 
designed. 

(k) Grease traps or grease interceptors shall be required at 
food service facilities, meat markets, and other places of 
business where the accumulation of grease can cause 
premature failure of a soil absorption system. The following 
design criteria shall be met: 

(1) The grease trap shall be plumbed to receive all 
wastes associated with food handling and no toilet 
wastes; 

(2) The grease trap liquid capacity shall be sufficient to 
provide for at least five gallons of storage per meal 
served per day. or at least two-thirds of the required 
septic tank liquid capacity, or a capacity as 
determined in accordance with the following: 



LC = D x GL x ST x HR/2 x LF 

where 

LC = grease trap liquid capacity (gallons) 

D = number of seats in dining area 

GL = gallons of wastewater per meal ( 1.5 single-service: 

2.5 full service) 
ST = storage capacity factor = 2.5 
HR = number of hours open 
LF = loading factor = (1.25 interstate highway 

= 1 ,0 other highways and recreational areas 

= 0.8 secondary roads) 

(3) Two or more chambers must be provided, with total 
length-to-width ratio at least 2: 1 . Chamber opening 
and outlet sanitary tee must extend down at least 50 
percent of the liquid depth 

(4) Access manholes, with a minimum diameter of 24 
inches, shall be provided over each chamber and 
sanitary tee. The access manholes shall extend at 
least to finished grade and be designed and 
maintained to prevent surface water infiltration. The 
manholes shall also have readily removable covers 
to facilitate inspection, filter maintenance, and 
grease removal. 

(5) One tank or multiple tanks, in series, shall be 
constructed in accordance with Rules .1952, .1953. 
and .1954 of this Section, and the provisions of 
Paragraphs (k)(3) and (k)(4) of this Rule. 

(6) Where it has been demonstrated that specially 
designed grease interceptors will provide improved 
performance, the grease trap liquid capacity may be 
reduced by up to 50 percent. 

(1) Stepdowns or drop boxes may be used where it is 
determined by the local health department that topography 
prohibits the placement of nitrification trenches on level grade. 
Stepdowns shall be constructed of two linear feet of 
undisturbed soil and constructed to a height which fully 
utilizes the upstream nitrification trench. Effluent shall be 
conveyed over the stepdovui through nonperforated pipe or 
tubing and backfilled with compacted soil. Drop boxes shall 
be constructed so that the invert of the inlet supply pipe is one 
inch above the invert of the outlet supply pipe which is 
connected to the next lower drop box. The top of the trench 
outlet laterals, which allow effluent to move to the nitrification 
lines, shall be two inches below the invert of the outlet supply 
line. Area taken up by stepdowns and drop boxes shall not be 
included as part of the minimum area required for nitrification 
trench bottoms. 

(m) Nitrification trenches shall be installed with at least one 
foot of naturally occurring soil between the trench bottom and 
saprolite. rock, or any soil horizon unsuitable as to structure, 
clay mineralogy or wetness. If the separation between the 
bottom of the nitrification trench and any soil wetness 
condition is less than 18 inches, and if more than six inches of 
this separation consists of Group I soils, a low pressure pipe 
system shall be required. 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



867 



APPROVED RILES 



(n) If sewage effluent pumps are used, the applicable 
requirements of Rule .1952 of this Section shall apply. 

(o) Collection sewers shall be designed and constructed in 
accordance with the following minimum criteria: 

( 1 ) Building drains and building sewers shall be in 
accordance with the state plumbing code and 
approved by the local building inspector. 

(2) Pipe material shall be specified to comply with the 
applicable ASTM standards, with methods of 
joining and other special installation procedures 
specified which are appropriate for the pipe to be 
used. 

(3) Gravity sewers shall be designed to maintain scour 
velocities of at least two feet per second with the 
pipe half full and a minimum of one foot per second 
at the peak projected instantaneous flow rate. Force 
mains shall be sized to obtain at least a two-foot per 
second scour velocity at the projected pump 
operating flow rate. 

(4) Infiltration and exfiltration shall not exceed 100 
gallons per day per inch diameter per mile of gravity 
sewer pipe or 20 gallons per day per inch diameter 
per mile of pressure pipe in force mains and supply 
lines. 

(5) Three-foot minimum cover shall be provided for all 
sewers unless ferrous material pipe is specified. 
Ferrous material pipe or other pipe with proper 
bedding to develop design-supporting strength shall 
be provided where sewers are subject to 
traffic-bearing loads. 

(6) Manholes shall be used for sewers at any bends, 
junctions, and at least every 425 feet along the 
sewer lines. Drop manholes are required where the 
inlet to outlet elevation difference exceeds 2.5 feet. 
Manhole lids shall be watertight if located below the 
100-year flood elevation, within 100 feet of any 
public water supply source, or within 50 feet of any 
private water supply source or any surface waters 
classified WS-I, WS-II, WS-III. SA, SB, or B. 

(7) Cleanouts may be used instead of manholes for 
four-inch and six-inch sewers serving one or two 
buildings or as otherwise allowed by the North 
Carolina Plumbing Code. When used, cleanouts are 
required at least every 50 feet for four-inch sewers 
and every 100 feet for six-inch sewers and at all 
junctions and bends which exceed 45 degrees. 

(8) Additional ventilation provisions may be required 
for collection sewers. Air relief valves shall be 
provided as needed for force mains. 

(p) Alternating dual field nitrification systems may be 
utilized where soils are limited by high clogging potentials 
(Soil Groups III and IV) and where the potential for 
malfunction and need for immediate repair is required. 
Alternating dual nitrification fields shall be designed with two 
complete nitrification fields, each sized a minimum of 75 
percent of the total area required for a single field and 
separated by an effluent flow diversion valve. The diversion 



valve shall be constructed to resist 500 pounds crushing 
strength, structurally sound, and shall be resistant to corrosion. 
Valves placed below ground level shall be provided with a 
valve box and suitable valve stem so that they may be operated 
from the ground surface. 

History Note: Authority G.S. 130A-335 (e), (f) and 
(fl)[2ndj; 

Eff. July I, 1982; 

Amended Eff. August I, 1991; January 1, 1990: August 1, 

1988; February 1, 1987; 

Temporary Amendment Eff. January 1, 1999; 

Amended Eff. August L 2000. 

.1956 MODIFICATIONS TO SEPTIC TANK 
SYSTEMS 

The following are modifications to septic tank systems or 
sites which may be utilized singly or in combination to 
overcome selected soil and site limitations. Except as required 
in this Rule, the provisions for design and installation of Rule 
.1955 of this Section shall apply: 

(1) SHALLOW SYSTEMS: Sites classified 
UNSUITABLE as to soil depth or soil wetness may 
be reclassified as PROVISIONALLY SUITABLE 
with respect to soil depth or soil wetness conditions 
by utilizing shallow placement of nitrification 
trenches in the naturally occurring soil. Shallow 
trenches may be used where at least 24 inches of 
naturally occurring soil are present above saprolite, 
rock, or soil wetness conditions and all other factors 
are PROVISIONALLY SUITABLE or SUITABLE. 
Shallow trenches shall be designed and constructed 
to meet the vertical separation requirements in Rule 
.1955(m) of this Section. The long-term acceptance 
rate shall be based on the most hydraulically 
limiting naturally occurring soil horizon within 24 
inches of the ground surface or to a depth of one 
foot below the trench bottom, whichever is deeper. 
Soil cover above the original grade shall be placed 
at a uniform depth over the entire nitrification field 
and shall extend laterally five feet beyond the 
nitrification trench. The soil cover shall be placed 
over a nitrification field only after proper 
preparation of the original ground surface. The type 
and placement of soil cover shall be approved by the 
local health department. 

(2) DRAINAGE AND RESTRICTIVE HORIZONS: 
Sites classified UNSUITABLE as to soil wetness 
conditions or restrictive horizons may be 
reclassified PROVISIONALLY SUITABLE as to 
soil wetness conditions or restrictive horizons when: 

(a) Soils are Soil Groups I or II with SUITABLE 
structure, and clay mineralogy; 

(b) Restrictive horizons, if present, are less than 
three inches thick or less than 12 inches from 
the soil surface; 



868 



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APPROVED RULES 



(c) Modifications can be made to meet the 
requirements in Rule .1955(m) of this Section 
for the separation between the water table and 
the bottom of the nitrification trench at all 
times and when provisions are made for 
maintenance of the drainage systems; 

(d) Easements are recorded and have adequate 
width for egress and ingress for maintenance 
of drainage systems serving two or more lots; 

(e) Maintenance of the drainage system is made a 
condition of any permit issued for the use or 
operation of a sanitary sewage system; and 

(f) Drainage may be used in other types of soil 
when the requirements of Rule .1948(d) in 
this Section are met. 

(3) GRAVELLESS TRENCHES: Modified 

nitrification trenches or lines, including large 

diameter pipe (greater than four inches I.D.). and 

specially designed porous block systems may be 

permitted by the local health department. 

(a) Gravelless nitrification trench systems may 

be substituted for conventional trench 

systems on any site found to be suitable or 

provisionally suitable in accordance with 

Rules .1940 to .1948 of this Section to 

eliminate the need for gravel, minimize site 

disturbance, or for other site planning 

considerations. Gravelless nitrification trench 

systems shall not be used, however, where 

wastes contain high amounts of grease and 

oil. such as restaurants. 

(i) Large diameter pipe systems shall 

consist of eight-inch or 10-inch (inside 

diameter), corrugated, polythylene 

tubing encased in a nylon, polyester, or 

nylon/polyester blend filter wrap 

installed in a nitrification trench. 12 or 

more inches wide and backfilled with 

soil classified as soil group I. II. or III. 

Nitrification area requirement shall be 

determined in accordance with Rules 

.1955(b) and .1955(c), or in Rule 

,1956(6)(b), Table III of this Section. 

when applicable, with eight-inch 

tubing considered equivalent to a 

two-foot-wide conventional trench and 

10-inch tubing considered equivalent 

to a two and one-half-foot-wide 

conventional trench. The long-term 

acceptance rate shall not exceed 0.8 

gallons per day per square foot. 

Tubing and fittings shall comply with 

the requirements of ASTM F-667, 

which is hereby incorporated by 

reference including any subsequent 

amendments and editions. Copies of 



the standards may be inspected in and 
copies obtained from the Divison of 
Environmental Health. P.O. Box 
27687, Raleigh. NC 2761 1-7687 al no 
cost. The corrugated tubing shall have 
two rows of holes, each hole between 
three-eighths and one-hall-inch in 
diameter, located 120 degrees apart 
along the bottom half of the pipe (each 
60 degrees from the bottom center 
line) and staggered so that one hole is 
present in the valley of each 
corrugation. The tubing shall be 
marked with a visible top location 
indicator, 120 degrees away from each 
row of holes. Filter wrap shall be 
spun, bonded, or spunlaced nylon, 
polyester, or nylon/polyester blend 
nylon filter wrap meeting the following 
minimum requirements: 



Unit Weight: 



Sheet Grab Tensile: 



Trapezoid Tear: 



Mullen Burst: 



Oz/yd-= 1 .0 
MD - 23 lbs. 
MD - 6.2 lbs. 
XD-5.1 lbs. 
PS I = 40 
KPa = 276 



Frazier Air Perm. CFM/ft ] 0.5 "H : 0: 500" 
Corrugated Tubing shall be covered with filter wrap at the 
factory and each joint shall be immediately encased in a black 
polyethylene sleeve which shall continue to encase the large 
diameter pipe and wrap until just prior to installation in the 
trench. Large diameter pipe systems shall be installed in 
accordance with this Rule and the manufacturers guidelines. 
The trench bottom and pipe shall be level (with a maximum 
fall of one inch in 100 feet). Filter wrap encasing the tubing 
shall not be exposed to sunlight (ultraviolet radiation) for 
extended periods. Rocks and large soil clumps shall be 
removed from backfill material prior to being used. Clayey 
soils (soil group IV) shall not be used for backfill. The near 
end of the large diameter pipe shall have an eight-inch by 
four-inch offset adaptor (small end opening at top) suitable for 
receiving the pipe from the septic tank or distribution device 
and making a mechanical joint in the nitrification trench. 

(ii) A Prefabricated. Permeable Block 
Panel System (PPBPS). untilizing both 
horizontal and vertical air chambers 
and special construction to promote 
downline and horizontal distribution of 



14:10 



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November 15, 1999 



869 



APPROVED RULES 



effluent, may be used under the 
following eonditions: 

(A) the soil and site eriteria of this 
Seetion shall be met; 

(B) in calculating the required linear 
footage for a PPBPS's 
nitrification field, the linear 
footage for the nitrification line 
as determined in Rule .1955 (b) 
and (c), or in Rule .1956 (6)(b), 
Table III of this Section when 
applicable, shall be multiplied 
by 0.5 for a 16inchPPBPS; 

(C) installation of the PPBPS shall 
be in accordance with these 
Rules except: 

(1) the PPBPS trench shall 
be located not less than 
eight feet on centers: 

(II) the installation shall be in 
accordance with the 
manufacturer's 
specifications: and 

(III) the si dew alls of 
nitrification trenches 
placed in Group IV soils 
shall be raked to open 
pores which were 
damaged or sealed during 
excavation; 

(D) where design sewage flow is 
more than 480 gallons per day. 
the system shall be 
pressure-dosed: and 

(E) the long-term acceptance rate 
shall not exceed 0.8 gallons per 
day per square foot. 

(b) Other types of nitrification trenches or lines 
may be approved by the local health 
department on a site-specific basis in 
accordance with Rule 1969 of this Section. 

(4) INTERCEPTOR DRAINS: Sites classified as 
UNSUITABLE as to soil wetness conditions 
because of the presence of lateral water movement 
may be reclassified PROVISIONALLY SUITABLE 
as to soil wetness conditions when such water is 
intercepted and diverted to prevent saturation of the 
soil absorption system. 

(5) STEEP SLOPES: Stable slopes greater than 30 
percent may be reclassified as PROVISIONALLY 
SUITABLE when: 

(a) The soil characteristics can he classified as 
SUITABLE or PROVISIONALLY 
SUITABLE to a depth of at least one foot 
below the bottom of the nitrification trench at 
the upslope side of the trench: 



(h) Surface water runoff is diverted around the 
nitrification field if necessary to prevent 
scouring or erosion of the soil over the field; 
and 
(c) The finished grade over the nitrification field 
site is returned to the original topography and 
adequately seeded, unless otherwise specified 
by the local health department. 
(6) SAPROLITE SYSTEM: Sites classified 

UNSUITABLE as to soil depth, with saprolite 
present, may be reclassified PROVISIONALLY 
SUITABLE as to soil depth when the provisions of 
this Paragraph are met. 

(a) An investigation of the site using pits at 
locations specified by the local health 
department shall be conducted. The 
following physical properties and 
characteristics shall be present in the two feet 
of saprolite below the proposed trench 
bottom: 

(i) the saprolite texture shall be sand, 
loamy sand, sandy loam, loam, or silt 
loam; 

(ii) clay mineralogy shall be suitable; 

(iii) greater than two-thirds of the material 
shall have a moist consistence of loose, 
very friable, friable, or firm; 

(iv) the saprolite wet consistence shall be 
nonsticky or slightly sticky and 
nonplastic or slightly plastic; 
(v) the saprolite shall be in an undisturbed, 
naturally occurring state; and 

(vi) the saprolite shall have no open and 
continuous joints, quartz veins, or 
fractures relic of parent rock to a depth 
of two feet below the proposed trench 
bottom. 

(b) Table III shall be used in determining the 
long-term acceptance rate for septic tank 
systems installed pursuant to Paragraph (6) of 
this Rule. The long-term acceptance rate shall 
be based on the most hydraulically limiting, 
naturally occurring saprolite to a depth of two 
feet below trench bottom. 





TABLE III 




SAPROLITE 


SAPROLITE 


LONG-TERM 


GROIP 


TEXTLRAL CLASSES 


ACCEPTANCE 
RATE 

sjpdyfr 


1 


Sands Sand 


0.8 - 0.6 




Loamv Sand 


0.7 - 0.5 


II 


Loams Sandv Loam 


0.6 - 0.4 


- 


Loam 


0.4-0.2 




Silt Loam 


0.3-0.1 



870 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



APPROVED RILES 



If a low pressure pipe system is used, the long term acceptance 
rate in Table III shall be reduced by one-half and the system 
shall be designed in accordance with Rule .1957(a) of this 
Section, except that Rule .1957 (a)(2)(B) and Rule .1957(a)(3) 
shall not apply. Saprolite textural classifications shall be 
determined from disturbed materials and determined by Rule 
.1941(a)(1) of this Section. Low-pressure distribution shall be 
used when the total length of nitrification lines exceeds 750 
feet in a single system. 

(c) The design daily flow shall not exceed 1000 gallons. 

(d) The nitrification field shall be constructed using 
nitrification trenches with a maximum width of 
three feet and a maximum depth of three feet on the 
downslope side of the nitrification trench. The 
bottom of a nitrification trench shall be a minimum 
of two feet above rock or saprolite that does not 
meet the requirements of Subparagraph (6)(a) of this 
Rule. However, where SUITABLE or 
PROVISIONALLY SUITABLE soil underlies the 
trench bottom, this separation distance may be 
reduced by subtracting the actual soil depth beneath 
the trench bottom from 24 inches to establish the 
minimum separation distance from the trench 
bottom to rock. 

(e) The bottom of any nitrification trench shall be a 
minimum of two feet above any wetness condition. 

(f) Surface and subsurface interceptor drains shall be 
required on sites with more slowly permeable 
horizons above the usable saprolite to intercept 
laterally flowing waters or perched waters. 

(g) Exceptions to the provisions of Rule .1950(a) found 
in Rule .1950 and .1951 of this Section shall not 
apply to systems installed pursuant to this Paragraph 
[Rule. 1956(6) |. 

(h) Other saprolite systems may be approved on a site- 
specific basis in accordance with Rule .1948(d) of 
this Section. 

History Note: Authority G.S. 130A-335(e) and if); 

Eff. July I. 1982; 

Amended Eff. November 1. 1999; July I. 1995; April 1. 1993; 

January 1, 1990; August 1, 1988. 

CHAPTER 19 - HEALTH: EPIDEMIOLOGY 

SUBCHAPTER 19A - SUBCHAPTER 19A - ACUTE 
COMMUNICABLE DISEASE CONTROL 

SECTION .0400 - IMMUNIZATION 

.0401 DOSAGE AND AGE REQUIREMENTS EOR 
IMMUNIZATION 

Every individual in North Carolina required to be 
immunized pursuant to G.S. 130A-152 through 130A-157 
shall be immunized against the following diseases by receiving 



the specified minimum doses of vaccines by the specified 
ages: 

( 1 ) Diphtheria, tetanus, and whooping cough vaccine -- 
five doses: three doses by age seven months and two 
booster doses, one by age 19 months and the second 
on or after the fourth birthday and before enrolling 
in school (K-l ) for the first time. The requirements 
for booster doses of diphtheria, tetanus, and 
whooping cough vaccine shall not apply to 
individuals who enrolled for the first time in the first 
grade before July 1. 1987. However: 

(a) An individual who has attained his or her 
seventh birthday without having been 
immunized against whooping cough shall not 
be required to be immunized with a vaccine 
preparation containing whooping cough 
antigen; 

(b) Individuals who receive the first booster dose 
of diphtheria, tetanus, and whooping cough 
vaccine on or after the fourth birthday shall 
not be required to have a second booster 
dose: 

(c) Individuals attending school, college or 
university or who began their 
tetanus/diphtheria toxoid series on or after the 
age of seven years shall be required to have 
three doses of tetanus/diphtheria toxoid of 
which one must have been within the last 10 
years; 

(2) Poliomyelitis vaccine— four doses: two doses of 
trivalent type by age five months; a third dose 
trivalent type before age 19 months, and a booster 
dose of trivalent type on or after the fourth birthday 
and before enrolling in school (K-l) for the first 
time. However: 

(a) An individual attending school who has 
attained his or her 18th birthday shall not be 
required to receive polio vaccine; 

(b) Individuals who receive the third dose of 
poliomyelitis vaccine on or after the fourth 
birthday shall not be required to receive a 
fourth dose; 

(c) The requirements for booster doses of 
poliomyelitis vaccine shall not apply to 
individuals who enrolled for the first time in 
the first grade before July 1. 1987; 

(3) Measles (rubeola) vaccine— two doses of live, 
attenuated vaccine administered at least 30 days 
apart: one dose on or after age 1 2 months and before 
age 16 months and a second dose betore enrolling in 
school (K-l ) for the first time. However: 

(a) An individual who has been documented by 
serological testing to have a protective 
antibodv titer against measles shall not be 
required to receive measles vaccine; 



14:10 



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November 15, 1999 



871 



**4i 



APPROVED RULES 



(b) An individual who has been diagnosed prior 
to January 1, 1994, by a physician licensed to 
practice medicine as having measles (rubeola) 
disease shall not be required to receive 
measles vaccine; 

(c) An individual born prior to 1957 shall not be 
required to receive measles vaccine; 

(d) The requirement for a second dose of measles 
vaccine shall not apply to individuals who 
enroll in school (K-l) or in college or 
university for the first time before July 1. 
1994; 

(4) Rubella vaccine— one dose of live, attenuated 
vaccine on or after age 12 months and before age 16 
months. However: 

(a) An individual who has been documented by 
serologic testing to have a protective antibody 
titer against rubella shall not be required to 
receive rubella vaccine; 

(b) An individual who has attained his or her 
fiftieth birthday shall not be required to 
receive rubella vaccine; 

(c) An individual who entered a college or 
university after his or her thirtieth birthday 
and before February 1. 1989 shall not 
required to meet the requirement for rubella 
vaccine; 

(5) Mumps vaccine— one dose of live, attenuated 
vaccine administered on or after age 1 2 months and 
before age 16 months. However; 

(a) An individual born prior to 1957 shall not be 
required to receive mumps vaccine; 

(b) The requirements for mumps vaccine shall 
not apply to individuals who enrolled for the 
first time in the first grade before July 1 , 1987 
or in college or university before July 1. 
1994. An individual who has been 
documented by serological testing to have a 
protective antibody titer against mumps shall 
not be required to receive mumps vaccine; 

(6) Haemophilus influenzae, b. conjugate vaccine—three 
doses of HbOC or two doses of PRP-OMP before 
age seven months and a booster dose of any type on 
or after age 12 months and by age 16 months 
Individuals born before October 1, 1988 shall not be 
required to be vaccinated against Haemophilus 
influenzae, h. Individuals who receive the first dose 
of Haemophilus influenzae, b, vaccine on or after 
12 months of age and before 15 months of age shall 
be required to have only two doses of HbOC or 
PRP-OMP. Individuals who receive the first dose 
of Haemophilus influenzae, b. vaccine on or after 15 
months of age shall be required to have only one 
dose of any of the Haemophilus influenzae 
conjugate vaccines, including PRP-D. However, no 
individual who has passed their fifth birthday shall 



be required to be vaccinated against Haemophilus 
influenzae, b. 
(7) Hepatitis B vaccine-three doses: one dose by age 
three months, a second dose before age five months 
and a third dose by age 19 months. Individuals born 
before July 1, 1994 shall not be required to be 
vaccinated against hepatitis B. 

History Note: Authority G.S. BOA- 152(c); 130A-155. 1 

Eff. February 1. 1976; 

Amended Eff. J uh 1, 1977; 

Re adopted Eff . December 5. 1977; 

Filed as a Temporary Amendment Eff. Februaiy 1. 1988, for a 

period of 180 days to expire on July 29, 1988; 

Amended Eff. October 1. 1995; October 1, 1994; January 1. 

1994; January 4. 1993; 

Temporal^ Amendment Eff. August 20, 1999; May 21, 1999; 

Amended Eff. August L 2000. 

SECTION .0500 - PURCHASE AND DISTRIBUTION 
OF VACCINE 

.0502 VACCINE FOR PROVIDERS OTHER THAN 
LOCAL HEALTH DEPARTMENTS 

(a) The Department of Environment, Health, and Natural 
Resources shall provide vaccines required by law free of 
charge to the following providers for administration to 
individuals who need vaccines to meet the requirement of G.S. 
130A-152, 130-155.1 and 15A NCAC 19A .0401: 

( 1 ) Community, migrant, and rural health centers; 

(2) Colleges and universities for students: and 

(3) Physicians and other health care providers. 

(b) Upon request of the Department, required vaccines may 
be distributed by local health departments operating as agents 
of the State to providers listed in Subparagraphs (an 1 ). (2) and 
(3) of this Rule. 

(c) Providers authorized in Paragraph (a) of this Rule shall 
be eligible to receive free vaccines from the Department only 
if they sign an agreement with the Department. This 
agreement will be prepared by the Immunization Section and 
will require the provider to: 

( 1 ) Charge no more for a single dose of vaccine than the 
rate established by the Health Care Financing 
Administration (HCFA); Charge no more than 
double the HCFA rate as a reasonable fee for the 
administration of two or more vaccines given at a 
single visit. The rate established by HCFA is 
published in the Federal Register (59FR50235), and 
is incorporated herein by reference along with any 
subsequent amendments and editions. The HCFA 
rate may be inspected at the Immunization Section 
of the Department of Environment, Health, and 
Natural Resources. Copies may also be obtained 
from the Immunization Section at no charge; 



872 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



APPROVED RULES 



(2) Provide all vaccines needed during a visit unless a 
specific contraindication exists to one or more of the 
vaccine: 

(3) Charge no office fee in addition to an administration 
fee for an immunization-only visit; 

(4) Agree not to charge an administration fee to an 
individual who states that they are unable to pay; 

(5) Impose no condition as a prerequisite to receiving 
vaccine; 

(6) The providers shall submit a monthly doses 
administered report by the tenth of each month 
electronically through the North Carolina 
Immunization Registry or on a form provided by the 
Immunization Section. 

(7 1 Report adverse vaccine reactions through the 
Vaccine Adverse Event Reporting System 
(VAERS); 

( 8 ) Provide the latest edition of the applicable Important 
Information Statement (IIS), or Vaccine 
Information Statement (VIS) to the parent, guardian, 
or person standing in loco parentis for each dose of 
vaccine administered; document this action within 
the patient's permanent medical record; retain the 
documentation for a period of 10 years following 
the end of the calendar year in which the vaccine 
dose was administered, or for 10 years following the 
recipient's age of majority, whichever is longer; 
upon request, furnish copies of the documentation to 
the local health department or the Department. 
Keep a record of the vaccine manufacturer, lot 
number, and date of administration for each dose of 
vaccine administered; 

(9) Allow periodic inspection of their vaccine supplies 
and records by the Immunization Section; and 

(10) Comply with the rules of this Section. 

History Note: Authority G.S. 130A-152; 130A- 155.1; 130A- 

433; S.L. 1986. c. 1008. s.2; S.L. 1987. c. 215. s.7; 

Filed as Temporary Rule Eff. October 5. 1986 for a period of 

120 days to expire on February 1. 1987; 

Filed as a Temporary Rule Eff. February 1. 1987 for a period 

of 120 days to expire on May 31. 1987; 

Filed as a Temporary Amendment Eff . February 1, 1988. for a 

period of 180 days to expire on July 29. 1988; 

Filed as a Temporary Amendment Eff. August 26. 1992. for a 

period 180 days or until the permanent rule becomes effective. 

whichever is sooner; 

Filed as a Temporary Amendment Eff October 1. 1994. for a 

period of 180 days or until the permanent rule becomes 

effective, whichever is sooner; 

Eff. March I. 1987; 

Amended Eff. October 1. 1995: January 1. 1995; January 4. 

1994; January 4. 1993; 

Temporary Amendment Eff. December 1. 1998; 

Amended Eft. Aiuntst L 2000. 



CHAPTER 27 - WELL CONTRACTOR 
CERTIFICATION RULES 

SECTION .0100 - DUTIES AND DEFINITIONS 

.0101 DEFINITIONS 

(a) "Commission" means the Well Contractors Certification 
Commission as established by the North Carolina General 
Assembly. 

(b) "College course" means a semester unit or quarter hour 
unit of instruction given at a college or university, which is 
relevant to well contractor activities. 

(c) "Course/activity" means any course or activity with a 
clear purpose and objective which will maintain, improve or 
expand skills and knowledge relevant to the practice of well 
contractor activities. 

(d) "Department" means the Department of Environment 
and Natural Resources. 

(e) "Personally manage" means giving directions to the 
on-site person who is personally supervising well contractor 
activities. 

(f) "Personally supervise" means the on-site direction and 
control of all well contractor activities at any time those 
activities are being conducted. 

(g) "Professional development hour" or "PDH" means a 
nominal contact hour of instruction or presentation that is the 
basic unit of credit for all courses or activities related to 
satisfying continuing education requirements. 

(h) "Secretary" means the Secretary of the Department of 
Environment and Natural Resources. 

History Note: Authority G.S. 87-98.2; 87-98.12: I43B- 

301.11; 

Temporaiy Adoption Eff. December 15. 1998; 

Eff. August 1. 2000. 

.0110 DUTIES OF A CERTIFIED WELL 
CONTRACTOR 

(a) A Certified well contractor must be present at all times 
when well contractor activities are being conducted. 

(b) A person who has satisfactorily met the requirements of 
the Commission relating to well contractor activities is entitled 
to recognition as a Certified Well Contractor certified to 
practice as a well contractor in the State of North Carolina. 

(1) Each certified well contractor shall be assigned a 
permanent certification number and shall be issued a 
certificate with that certification number. 
Certification numbers are not transferable and shall 
not be used by another well contractor. 

(2) The certification number shall be carried by the well 
contractor on a card issued by the Commission at all 
times when performing well contractor activities. 

History Note: Authority G.S. 87-98.2; 87-98.4; 87-98.12; 

143B-301.il; 

Temporary Adoption Eff. December 15. 1998; 



14:10 



SORTH CAROLINA REGISTER 



November 75, 7999 



873 



**& 



APPROVED RULES 



Eft. A us ust 1. 2000. 

SECTION .0200 - WELL CONTRACTOR FEES 

.0201 SCHEDULE OF CERTIFICATION FEES 

The following tees are required for well contractor 
certification applications. renewals and temporary 
certifications: 

( 1 ) Annual Fee: A fee of two hundred dollars ($200.00) 
shall accompany each new application for 
certification or renewal of certification. 

(2) Examination Fee: A fee of fifty dollars ($50.00) 
shall accompany each request for examination. 
Where an applicant requests an examination to be 
administered at a time other than a regularly 
scheduled examination, the fee shall be one hundred 
dollars ($100.00). 

(3) Temporary Certification: A fee of one hundred 
dollars ($100.00) shall accompany each application 
for temporary certification. 

History Note: Authority G.S. 87-98. 9; 
Temporary Adoption Eff. December 15. 1998; 
Eff. August I, 2000. 

SECTION .0300 - CERTIFICATION OF WELL 
CONTRACTORS 

.0301 APPLICATION REQUIREMENTS FOR 
CERTIFICATION 

(a) The Commission shall accept applications and renewal 
requests for certification as a well contractor from any person 
who is at least 18 years of age and whose application meets all 
the following conditions: 

( 1 ) Each application shall be submitted on forms 
provided by the Commission, which are designed 
for requesting certification as a well contractor by 
way of examination, certification without 
examination, or temporary certification and must be 
properly and accurately completed and submitted 
with an appropriate fee to the office of the chairman 
of the Commission. 

(2) Each application has been determined as complete. 
Incomplete applications and applications not 
accompanied by an appropriate fee and attachments 
cannot be processed and shall be returned to the 
applicant. 

(3) Each application shall contain proof of experience 
as provided in Paragraph (f) of this Rule. 

(4) Each application shall include a request for the well 
contractor examination or include documentation 
that the applicant meets the requirement for 
certification without examination as provided in 
Section .0500 of this Chapter. 



(b) Applicants who have intentionally supplied false 
information must wait 12 months before resubmitting an 
application for certification. 

(c) The Commission shall not schedule an applicant to take 
the required examination until his application has been 
reviewed and the applicant has met all other conditions for 
certification. The applicant must pass the examination within 
three attempts or within a one year period of time after 
application submittal or a new application shall be required. 
An applicant who has failed the examination after three 
consecutive attempts shall be required to obtain eight PDH 
units prior to resubmittal of an application for certification. 

(d) A certification shall not be issued until the applicant 
successfully passes the required examination or meets the 
requirements for certification without examination. 

(e) A certification issued by the Commission shall be valid 
in every county in the state. 

(f) Proof of two years experience in well contractor 
activities shall be demonstrated by providing one of the 
following: 

( 1 ) A list of at least 25 wells, together with their 
locations, major use and approximate depth and 
diameter, for which the applicant has supervised or 
assisted in the construction, repair or abandonment 
process. This list shall provide the name and 
address of the owner or owners of each well, and the 
approximate date the construction of each well was 
completed. A copy of the completion report for 
each well shall accompany the list. Completion 
dates of the 25 wells shall be distributed over a 
consecutive 24 month period. 

(2) Letters from three persons in a business related to 
well contractor activities (including, but not limited 
to. state or local government well inspectors, 
employing well contractors, competitors, and well 
materials suppliers) who attest that the applicant has 
been working in a well contractor activity for a 
minimum of 24 months. 

(3) A letter from at least one currently certified well 
contractor attesting that the applicant has been 
working in a well contractor activity for a minimum 
of 24 months. 

(4) Any other proof of working in well contractor 
activities for a minimum of 24 months may be 
presented to the Commission and may be accepted 
on an individual basis. 

Histoid Note: Authority G.S. 87-98.6; 87-98.9; 143B- 

301.11; 

Tempormy Adoption Eff. December 15. 1998; 

Eft. August 1. 2000. 

SECTION .0400 - CERTIFICATION BY 
EXAMINATION 

.0410 WELL CONTRACTOR EXAMINATIONS 



874 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



APPROVED RULES 



(a) Well contractor examinations shall be written, 
comprehensive examinations that are standardized statewide. 
The examinations shall be designed to determine the 
applicant's knowledge of applicable rules: ability to construct, 
repair and abandon a well; and the ability to supervise, direct, 
manage and control the contracting activities of the well 
contracting business. 

(b) The Commission may administer an examination orally 
or on an individual basis upon submission by the applicant of a 
notarized form provided by the Commission wherein the 
applicant states that he does not read, does not read well, or 
has a medical condition necessitating oral examination. 

(c) If any other request for an accommodation in taking the 
examination is based on a medical condition, the applicant 
shall submit, in addition to a notarized form, supporting 
documentation from a physician. 

(d) A grade on the examination of 70 percent or more shall 
be passing. Results of the examination shall be reported as 
either passing or failing. 

History Note: Authority G.S. 87-98.6: I43B-301. 11: 
Temporary Adoption Eff. December 15, 1998; 
Eff. Aueust 1, 2000. 

.0420 TIME AND PLACE OF EXAMINATION 

(a) An examination shall be given at least twice a year. 
Additional examinations may he scheduled by the 
Commission. Information regarding the date. time, and place 
shall be made available upon request. 

(b) Each applicant filing for examination shall be notified in 
writing of the date, time and place of the examination and the 
required grade for passing the examination. 

History Note: Authority G.S. 87-98.6; 143B-301. 1 1 . 
Temporary Adoption Eff. December 15. 1998: 
Eff. August 1. 2000. 

.0430 CONDUCTING AND GRADING 
EXAMINATIONS 

(a) Examinations, prepared by members of the Commission 
or its authorized representatives and approved by the 
Commission, shall be given only to those who. after filing a 
proper application, have been determined to be eligible. 
Examinations shall be conducted and graded under the 
supervision of a representative of the Commission, or its 
authorized representatives. When each applicant receives his 
examination, he shall identify himself by way of his driver's 
license or other form of photographic identification 
satisfactory to the proctor and the identification number shall 
be recorded on the face of the examination paper. 

(b) Representatives of the Commission or other authorized 
representatives, who are supervising the examinations may 
take appropriate action against applicants, including dismissal 
from the examination, if cheating does occur. II the applicant 
holds a certificate already, the Commission may revoke the 



certification in accordance with G.S. 87-98.8 and 15A NCAC 
27 . 0901 for cheating on an examination. 

History Note: Authority G.S. 87-98.6: 87-98.8; 143B- 

301.11: 

Temporiuy Adoption Eff. December 15. 1998; 

Eft. August 1. 2000. 

SECTION .0600 - CERTIFICATION RENEWAL 

.0601 CONDITIONS AND LIMITATIONS FOR 
RENEWAL OF CERTIFICATIONS 

(a) Certification issued pursuant to this Rule shall not be 
transferable and shall expire on December 3 1 of each year 
through the year 2000. Certification shall expire on June 30, 
2001 and shall expire on June 30 of each year thereafter. A 
certification may be renewed without examination for ensuing 
years by making application to the Commission no later than 
the expiration date of the certification and paying the renewal 
fee Receipt by the Commission of such application and the 
appropriate fee(s) shall extend the validity of the current 
certification until a new certification is received or the 
applicant is notified by the Commission that formal 
administrative action has been taken to suspend, revoke or 
deny renewal of the certification. 

lb) If a certification is not renewed in accordance with G.S. 
87-98. 7(b) and G.S. 87-98.9. the certification shall become 
void and may be renewed only in accordance with the 
requirements of G.S. 87-98. 7(b). 

(c) No application for a renewal shall be granted if the 
applicant's certification is suspended or revoked until the 
period for such suspension or revocation has expired. 

(d) Individuals certified under this program shall notify the 
Well Contractors Certification Commission within 30 days in 
writing of any change of their business or personal address. 

(e) The Commission shall notify the well contractor of 
nonpayment of the annual renewal fee in accordance with 
G.S. 87-98.9. Notice shall be attempted by certified mail or 
personal service. 

Histoid Note: Authority G.S. 87-98.6: 87-98.71 b); 143B- 

301.11; 

Temporaiy Adoption Eff. December 15. 1998: 

Eff. August L 2000. 

SECTION .0800 - CONTINUING EDUCATION 
REQUIREMENTS 

.0810 APPROVAL OF CONTINUING EDUCATION 
COURSES 

(a) For the purposes of this Section, "sponsor" means an 
organization or individual approved by the Commission 
after having supplied, on a form provided by the Commission, 
the information required by this Rule with respect to the 
organization's or individual's ability to provide instruction for 
courses or activities to maintain, improve, or expand the skills 



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and knowledge related to the practice of well contractor 
activities. After evaluation the Commission may grant 
approval of all courses offered by a particular "sponsor". 

(b) The Commission may require any sponsor that has 
received Commission approval for its course(s) to apply for 
renewal of such approval either annually or when the sponsor's 
course offerings or course schedule varies from what was 
previously approved, whichever occurs first. 

(c) The Commission shall approve courses that instruct on 
well contractor activities and the use of well contractor 
equipment, products, and materials. To be approved, courses 
and activities must contain a clear purpose and objective and 
result in the maintenance, improvement, or expansion of skills 
and knowledge related to the practice of well contractor 
activities. Additionally, to be approved, requests for approval 
of courses or activities shall include the following information: 

( 1 ) course content; 

(2) course schedule: 

(3) level of instruction provided (i.e., beginning, 
intermediate, advanced); 

(4) qualifications of instructors (including both 
education and experience); 

(5) materials provided, field experiences, and other 
activities available in connection with the course(s). 

History Note: Authority G.S. 87-98. 12; 143B-301. 1 I ; 
Temporary Adoption Eff. December 15, 1998; 
Eft: August 1, 2000. 

.0820 DETERMINATION OF CREDIT 

The Certification Commission has final authority with 
respect to approval of courses, sponsors, credit. PDH values 
for courses, and other methods of earning credit. Courses or 
activities must maintain, improve or expand the skills and 
knowledge related to the practice of well contractor activities 
in order for a well contractor to receive credit. The 
Commission shall award the stated hours of credit (PDH) for 
any acceptable and successfully completed activity in each of 
the following categories: 

( 1 ) Credit for college or community college courses 
shall be 45 PDH for receipt of a passing grade in the 
course, regardless of the number of credits awarded 
by the college or community college. 

(2) Credit for continuing education courses (including, 
bul not limited to. correspondence, televised, 
videotaped, audiotapes, and other short 
courses/tutorials) that provide a completion 
certificate shall be one PDH unit for each hour of 
attendance or contact time. 

(3) Credit for published papers, articles and books is 10 
PDH 

(4) Credit for active participation in professional and 
technical societies is limited to two PDH per 
organization. "Active participation" requires that 
the well contractor attend at least 50 percent of the 
regularly scheduled meetings. PDH credits for this 



type of activity are not earned until the end of each 
year of membership in the organization. 
(5) Credit for teaching or presenting in Items ( 1 ) and (2) 
of this Rule are double the stated credits For 
completion or attendance. Credit for teaching or 
presenting is available only for the first time that a 
well contractor teaches such a course or make such a 
presentation. Credit for teaching a course is not 
available to a well contractor if the well contractor is 
a full-time member of the faculty (as defined by the 
institution) where the course is taught. 

History' Note: Authority G.S. 87-98.12; 143B-301.il; 

Temporary- Adoption Eff. December 15. 1998; 
Eff. An s list 1. 2000. 

.0840 SPECIAL PROVISIONS FOR CONTINUING 
EDUCATION 

(ai Given the intrinsic educational value of preparing for 
and successfully passing an examination, a well contractor 
certified by way of examination or reciprocity pursuant to 
Rule .0510(b) of this Chapter for having passed an 
examination comparable to that administered by the 
Commission shall not be required to obtain any professional 
development hours prior to the first renewal of certification. 

(b) A well contractor serving on temporary active duty in 
the uniformed services of the United States for a period of 
time exceeding 120 consecutive days in a year shall be granted 
an extension of time in which to obtain the professional 
development hours required during that renewal period. The 
extension shall allow the requesting well contractor 12 months 
from the date the extension is granted to correct the deficiency 
in professional development hours (PDH) for the renewal 
period in issue. 

(c) If certified by a physician, a well contractor 
experiencing physical disability, illness, or other incapacitating 
medical condition such that the well contractor is incapable of 
attending continuing education courses or activities during a 
given renewal period shall be granted an extension of time in 
which to obtain professional development hours required 
during that renewal period. The extension shall allow the 
requesting well contractor 12 months from the date the 
extension is granted to correct the deficiency in professional 
development hours (PDH) for the renewal period in issue. 

History Note: Authority G.S. 87-98. 12; 143B-301. 11; 
Temporary Adoption Eff. December 15. 1998; 
Eft. August 1. 2000. 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 

CHAPTER 20 - BOARD OF REGISTRATION FOR 
FORESTERS 

SECTION .0100 - PURPOSE 



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.0103 QUALIFICATIONS FOR REGISTRATION 

(a) An application may be obtained from the Secretary of 
the Board. 

(b) An applicant shall submit an application to the Secretary 
which shall include: 



(I) 
(2) 

(3) 

(4) 



Legible official college transcripts, if applicable. 

Five references as required in Rule .0105 of this 

Section. 

Proof of professional work experience. 

Payment of application fee as set out in Rule .0107 

of this Section. 

(c) A school of Forestry accredited by the Society of 
American Foresters is an approved school or college for 
purposes of G.S. 89B-9. An applicant who holds a forestry 
degree from a university outside of the United States may 
qualify for registration if he/she provides verification to the 
Board which demonstrates that the degree is equivalent to SAF 
accreditation standards. 

(d) For purposes of G.S. 89B a forestry curriculum means a 
major in forestry. 

(e) The Board may issue a forester-in-training certificate to 
an applicant who has completed the education requirement in 
G.S. 89B-9(a)(l). The certificate shall be valid for up to 4 
years. The time period may be extended by the Board in case 
of hardship beyond the control ot the applicant. 

History Note: Authority G.S. 89B-6; 89B-9; 
Eff. February I. 1976: 

Amendment Eff. May 1. 1989: February J. 1985: 
Temporary Amendment Eff. March 1. 1999: 
Amended Eff. August L 2000. 

.0104 EXAMINATIONS 

(a) Examinations shall be offered twice annually. An 
applicant may attempt the examination no more than three 
times within any six year period. 

(b) Applicants shall be notified by certified mail, return 
receipt requested, not less than 30 days before the 
examination, as to the time and place of the examination. If 
the applicant fails to respond at least ten days prior to the date 
of the exam, it shall be assumed that the applicant does not 
plan to take the examination. The applicant's file shall then be 
considered inactive and no further action shall be initiated by 
the Board. The application fee shall be forfeited. 

(c) The passing grade for registration shall be 70 percent on 
any exam. The determination by the Board as to the score on 
each exam shall be final. 

(d) Re-examination fees shall be forty dollars ($40.00) per 
examination. 

History Note: Authority G.S. 89B-6: 89B-12; 
Eff. February 1. 1976; 

Amendment Eff. May 1. 1989: February 1. 1985; 
Temporary Amendment Eff. March 1. 1999; 
Amended Eft. August L 2000. 



.0105 REFERENCES 

(a) Five references are required to satisfy the Board of an 
applicant's professional experience and moral character. Three 

,or more shall be practicing, registered foresters in North 
Carolina. No more than one of the practicing forester 
references shall be an employee of the same firm or agency as 
the applicant. No member of the Board shall act as a reference 
for any applicant for registration. 

(b) If a majority of the references do not recommend 
approval, the Board shall reject the applicant. 

(c ) If two of the references do not recommend approval, the 
Board shall request more detailed input from all references to 
use in evaluating the applicant. 

History Note: Authority G.S. 89B-6; 89B-9; 
Eff. February 1. 1976; 

Amendment Eff. May 1. 1989; February 1, 1985; 
Temporary Amendment Eff. March 1. 1999; 
Amended Eff. August 1. 2000. 

.0106 REGISTRATION FEES 

Fees sent to the Board for any segment of the registration 
process may be in the form of money orders, bank drafts, or 
checks payable to the Secretary, Board of Registration for 
Foresters. The application fee for registration is thirty five 
dollars ($35.00), which shall be submitted by the applicant at 
the time of application. An approved applicant shall submit an 
additional fee of forty dollars ($40.00) to receive a certificate 
of registration. Annual renewal fee is thirty dollars ($30.00). 

History Note: Authority G.S. 89B-6; 89B-10; 89B-11; 
Eff. February 1. 1976; 

Amendment Eff. February 1. 1990; Max 1, 1985; 
Temporary Amendment Eff. March 1. 1999; 
Amended Eff. August L 2000. 

.0117 RECIPROCITY 

(a) Non-residents and individuals who have moved to North 
Carolina who are legally registered or licensed as foresters in 
another state, shall submit evidence of such registration or 
licensing to the Board. A statement from the Board of 
registration or licensing in the state in which they are legally 
registered or licensed attesting that they are legally registered 
or licensed to practice forestry in that state, and indicating the 
final date on which their registration or license remains valid, 
shall be accepted by the Board as adequate evidence. This 
provision shall not apply unless the state in which the 
applicant is registered or licensed observes similar rules of 
reciprocity in regard to persons registered under the provisions 
of G.S. 89B. 

(b) If the Board determines that the reciprocity applicant is 
qualified to practice as a registered forester in North Carolina, 
the Board shall issue a letter conveying this approval. 

(c) The fee for obtaining such reciprocity shall be the same 
as is charged a North Carolina resident seeking to obtain 



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registration in the state of North Carolina. (See Rule .0106 of 
this Section). 

History Note: Authority G.S. 89B-6; 89B-9; 
Eff. February 1. 1976 

Amendment Eff. May 1. 1989; February 1. 1985; 
Temporary Amendment Eff. March 1, 1999; 
Amended Eff. August 1, 2000. 

.0122 HANDLING OF COMPLAINTS 

(a) The Board, upon receipt of a notarized letter identifying 
specific complaints of gross negligence, fraud, deceit or 
flagrant misconduct in the practice of forestry or incompetence 
by a registered forester, shall follow-up by written 
correspondence to the accused requesting a response to the 
accusation. The Board may request the complainant, the 
accused registrant, or both to personally appear before the 
Board. 

(b) Following a review of the facts and verification of the 
violation, the Board may choose appropriate action, which 
may include: 

( 1 ) revocation or suspension of the individual as a 
registered forester as outlined in Rule .0106 of this 
Section. 

(2) warning to the registrant outlining the violation and 
directing that it be stopped. 

History Note: Authority G.S. 89B-2; 89B-6; 89B-13; 89B- 
15; 150B-3; 150B-38; 

Eff. November I. 1993; 

Temporary Amendment Eff. March 1, 1999; 

Amended Eff. August f 2000. 

.0123 CONTINUING EDUCATION 

(a) All registered foresters shall attend continuing education 
courses annually to maintain their registration. Ten CFE 
(Continuing Forester Education) credits approved by the 
Society of American Foresters* CFE Coordinator shall be 
required each year, beginning with the fiscal year July 1 , 1999 
through June 30. 2000, except as outlined in paragraph (c) of 
this Rule. CFE's must be SAF category 1, 2. 3 or 4, with at 
least six being from category 1 . 

(b) Registered foresters shall verify CFE compliance to the 
Board with each annual renewal. 

(c) Those registered foresters who provide information to 
the Board which verifies that they are fully retired from a 
career in forestry may qualify to continue their registration by 
earning a minimum of three category 1, 2, 3, or 4 CFE's 
annually. 

History Note: Authority G.S. 89B-6: 89B-11; 
Temporary Adoption Eff. March 1. 1999; 
Eff. August 1. 2000. 



CHAPTER 1 - OFFICE OF STATE PERSONNEL 

SUBCHAPTER IB - STATE PERSONNEL 
COMMISSION 

SECTION .0400 - APPEAL TO COMMISSION 

.0414 SITUATIONS IN WHICH ATTORNEYS FEES 
MAY BE AWARDED 

Attorney's fees may be awarded by the State Personnel 
Commission only in the following situations: 

( 1 ) the grievant is reinstated in accordance with Rule 
.0428 of this Section; 

(2) the grievant is awarded back pay from either a 
demotion or a dismissal, without regard to whether 
the grievant has been reinstated; 

(3) the grievant is determined, by the Commission or by 
the agency's internal grievance procedure, to have 
been discriminated against or harassed in violation 
of G.S. 126-16 or G.S. 126-36; 

(4) the grievant is awarded back pay as the result of a 
successful grievance alleging a violation of G.S. 
126-7.1; 

(5) the grievant is the prevailing party in a final appeal 
of a Commission decision: 

(6) any combination of the situations listed in this Rule. 
Attorney's fees may be awarded when any of the above 
situations occur, either within the agency internal grievance 
procedure, in an appeal to the State Personnel Commission, or 
in an appeal of a State Personnel Commission decision. 

History Note: Authority G.S. 126-4( 1 1 ); 126-7. 1; 
Eff. September 1. 1987; 
Amended Eff. March I. 1996; July 1. 1989; 
Temporary Amendment Eff. February 18, 1999; 
Amended Eff. August L 2000. 

.0434 DISCRIMINATION 

In those cases in which the State Personnel Commission 
finds an act of discrimination or unlawful workplace 
harassment prohibited by G.S. 126-16, G.S. 126-36 or G.S. 
126-36.1. the Commission may order reinstatement, back pay, 
transfer, promotion or other appropriate remedy. The 
Commission shall also have the authority in such cases to 
order other corrective remedies to ensure that the same or 
similar discriminatory acts do not recur. 

History Note: Authority G.S. 126-4(9); 126-16; 126-36; 

126-36.1; 

Eff. September 1 . 1987; 

Temporary Amendment Eff. February 18, 1999; 

Amended Eff. August L 2000. 

SUBCHAPTER 1C - PERSONNEL ADMINISTRATION 



TITLE 25 OFFICE OF STATE PERSONNEL 



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SECTION .0200 - GENERAL EMPLOYMENT 
POLICIES 

.0214 UNLAWFUL WORKPLACE HARASSMENT 

(a) Purpose. The purpose of this policy is to establish that 
the State of North Carolina prohibits in any form unlawful 
workplace harassment of state employees or applicants, and to 
require that every agency subject to the State Personnel Act 
establishes policies and programs to ensure that work sites are 
free of unlawful workplace harassment. 

(b) Unlawful workplace harassment is defined as 
unsolicited, and unwelcome speech or conduct based upon 
race, sex. creed, religion, national origin, age. color, or 
handicapping condition as defined by G.S. 168A-3 that creates 
a hostile work environment or circumstances involving quid 
pro quo. 

(c) Hostile Work Environment is one that both a reasonable 
person would find hostile or abusive and one that the 
particular person who is the object of the harassment perceives 
to be hostile or abusive. Hostile work environment is 
determined by looking at all of the circumstances, including 
the frequency of the allegedly harassing conduct, its severity, 
whether it is physically threatening or humiliating, and 
whether it unreasonably interferes with an employee's work 
performance. 

(d) Quid Pro Quo harassment consists of unwelcome sexual 
advances, requests for sexual favors, or other verbal or 
physical conduct when: 

( 1 ) submission to such conduct is made either explicitly 
or implicitly a term or condition o\~ an individual's 
employment; or 

(2) submission to or rejection of such conduct by an 
individual is used as the basis for employment 
decisions affecting such individual. 

(e) Retaliation is adverse treatment which occurs because of 
opposition to unlawful workplace harassment. 

(0 Policy. The policy of the State of North Carolina is that 
no state employee may engage in conduct that falls under the 
definition of unlawful workplace harassment indicated in 
Paragraph (b) of this Rule. No personnel decisions shall be 
made on the basis of race. sex. creed, religion, national origin, 
age. color, or handicapping condition as defined by G.S. 
168A-3. except as allowed by law. All employees are 
guaranteed the right to work in an environment tree from 
unlawful workplace harassment and retaliation. Unlawful 
workplace harassment is deemed a form of discrimination 
prohibited by G.S. 126-16 and G.S. 126-36. 

(g) Grievances. Any current or former state employee who 
feels he/she has been the victim of unlawful workplace 
harassment in violation of this Rule or applicable law may file 
a grievance/complaint through the departmental procedures for 
filing these claims. Filing such a written grievance/complaint 
shall be a prerequisite to any further appeal to the State 
Personnel Commission regarding unlawful workplace 
harassment. After the employee's written grievance/complaint 
is submitted to the department or agency, the department or 



agency shall have 60 calendar days within which to consider 
the grievance/complaint and take appropriate remedial action, 
if any. Consistent with G.S. 126-34. G.S. 126-34. 1 . G.S. 126- 
36 and G.S. 126-36.1 any current or former state employee 
who feels that he/she has been sub|ccted to unlawful 
workplace harassment may appeal directly to the State 
Personnel Commission (such appeal consisting of a contested 
case hearing under G.S. 150B and a decision by the Personnel 
Commission) only after submitting a written 
grievance/complaint and waiting 60 calendar days from the 
submission of the grievance/complaint. 

(h) Departmental Plans. Each department head or 
university chancellor shall include as a supplement to the 
Affirmative Action Plan a plan setting forth the steps to be 
taken to prevent and correct unlawful workplace harassment. 
Each department or university shall submit such a plan to the 
Office of State Personnel for review, technical assistance, and 
approval by the Director of State Personnel. Each plan on 
unlawful workplace harassment shall, at the minimum, 
include: 

( 1 ) publication and dissemination of a policy statement 
establishing that unlawful workplace harassment of 
employees and applicants is prohibited; 

(2) establishment of internal procedure to handle 
complaints of unlaw lul workplace harassment or 
retaliation. This procedure shall provide prompt 
investigation and resolution of complaints within the 
department or university and shall offer the 
employee recourse other than through the immediate 
supervisor; 

(3) utilization of training and other methods to prevent 
unlawful workplace harassment; 

(4) statement that the department will, in allegations of 
unlawful workplace harassment, review the entire 
record and the totality of the circumstances, to 
determine whether the alleged conduct constitutes 
unlawful workplace harassment; 

(5) a method for implementing appropriate disciplinary 
actions for conduct determined to constitute 
unlawful workplace harassment, to be implemented 
on a case-by-case basis on the facts of each 
complaint, and to ensure that disciplinary actions 
shall be consistently and fairly applied; 

(6) prohibition of internal interference, coercion, 
restraint or reprisal against any person complaining 
of alleged unlawful workplace harassment: 

(7) notification to all employees that a complaint or 
allegation of unlawful workplace harassment must 
be filed within the department or agency and that the 
agency or department has 60 calendar days to take 
appropriate action, if any. in response to the 
complaint prior to the filing of a complaint of 
unlawful workplace harassment with the State 
Personnel Commission. 



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History Note: Authority G.S. 126-4; 126-16; 126-17; 126- 

36; 126-36.1; 

Eff. December 1, 1980; 

Amended Eff. November 1, 1988: April 1, 1983: 

Temporary Amendment Eff. February 18, 1999; 

Amended Eff. August 1. 2000. 

SUBCHAPTER 1H - RECRUITMENT AND 
SELECTION 

SECTION .0600 - GENERAL PROVISIONS 

.0602 POSTING AND ANNOUNCEMENT OF 
VACANCIES 

(a) All agencies shall select from the most qualified persons 
to fill vacant positions. Employment shall be offered based 
upon the job-related qualifications of applicants for 
employment using fair and valid selection criteria and not on 
political affiliation or political influence. For purposes of this 
policy, "political affiliation" is the membership in. 
participation in, or support of, a particular political party, 
group, or candidate; "political influence" occurs when political 
affiliation impacts the decision to hire or not to hire and the 
selection decision was not based on fair and valid selection 
criteria. 

(b) Vacant positions to be filled in state government shall 
be publicized by the agency having the vacancy to permit an 
open opportunity for all interested employees and applicants to 
apply. The term "agency" as used in this Subsection includes 
all state departments, institutions, commissions, and boards. 
The recruitment and selection process shall be consistently 
applied, non-discriminatory and promote open and fair 
competition and the hiring of a diverse workforce. 

(c) Vacancies which shall be filled from within the agency 
workforce shall have an application period of not less than five 
working days and shall be prominently posted in at least the 
following locations: 

( 1 ) The personnel office of the agency having the 
vacancy; and 

(2) The particular work unit of the agency having the 
vacancy. 

(d) If the decision is made, initially or at any time a vacancy 
remains open, to receive applicants from within the overall 
state government workforce, that vacancy shall be listed with 
the Office of State Personnel for the purpose of informing 
current state employees of the opening. Such vacancies shall 
have an application period of not less than seven working days 
from the time the listing is received by the Office of State 
Personnel. Each vacancy for internal posting or listing with 
the Office of State Personnel shall be described in an 
announcement which includes at minimum the position 
number, title, salary range, essential functions, knowledge and 
skill requirements, minimum training and experience standard, 
the application period and the appropriate contact person. 
Each vacancy listing must include a closing date unless the 
classification has been determined as critical. Factors used in 



determining critical classifications shall include: agency 
turnover; number of positions in class; geographic location; 
scarcity of skills; safety, health or quality of care for clients. 
Such critical classifications, which shall not require closing 
dates on vacancy postings, shall be approved by the State 
Personnel Commission. On those classes determined to be 
critical, which are considered open, continuous postings, 
agencies shall determine how long applications shall be 
considered active. Posting requirements shall not apply to: 

( 1 ) Vacancies which must be used to meet management 
necessity, for which an agency shall not openly 
recruit. Examples include vacancies committed to a 
budget reduction, vacancies used for disciplinary 
transfers or demotions, use of an existing vacancy to 
avoid reduction in force, and transfer of an 
employee to an existing opening to avoid the threat 
of bodily harm. 

(2) Vacancies for positions which have been designated 
exempt policy-making under G.S. 126-5(d). 

(3) Vacancies which must be filled immediately to 
prevent work stoppage in constant demand 
situations, or to protect the public health, safety, or 
security. 

(4) Vacancies for positions to be filled by chief deputies 
and chief administrative assistants to elected or 
appointed department heads; and vacancies for 
positions to he filled by confidential assistants and 
confidential secretaries to elected or appointed 
department heads, chief deputies, or chief 
administrative assistants. The decision to exercise a 
vacancy posting exception based upon Paragraphs 
(d)(1) and (3) of this Rule shall be the responsibility 
of the agency head. The Office of State Personnel is 
available upon request to provide counsel and 
guidance in instances of uncertainty. 

(e) Any vacancy for which an agency wishes to consider 
outside applicants or outside applicants concurrently with the 
state government work force shall be listed simultaneously 
with the appropriate Employment Security Commission office, 
as required by G.S. 96-29, and with the Employment Practices 
and Priorities Section of the Office of State Personnel. Listings 
shall include the appropriate announcement information and 
vacancies so listed shall have an application period of not less 
than seven work days. 

(f) If an agency makes an initial effort to fill a vacancy from 
within the state government work force only, and is 
unsuccessful, the listing with the Employment Security 
Commission would take place when a decision is made to 
recruit outside. A vacancy which an agency will not fill for 
any reason shall not be listed; if conditions change, it shall 
then be treated as a new vacancy. 

(g) The Office of State Personnel may withhold approval 
for an agency to fill a job vacancy if the agency cannot prove 
to the satisfaction of the Office of State Personnel that it 
complied with these posting requirements. If any agency hires 
any person in violation of these posting requirements, and it is 
determined by the Office of State Personnel that the 



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employment of the person hired must be discontinued as a 
result of the posting violation, the agency shall pay such 
person for the work performed during the period of lime 
between his/her initial employment and separation. 

(h) When a vacancy is listed with the Employment Security 
Commission, the listing agency may not fill the job opening 
for at least 21 days after the listing has been filed and the local 
office with which the listing is made shall be notified by the 
agency within 15 days after the vacancy is filled. Upon 
agency request the Employment Security Commission may 
waive the waiting period for filling listed vacancies in job 
classifications for which the State Personnel Commission has 
recognized candidates are in short supply if it hinders the 
agency in providing essential services. 

History Note: Filed as a Temporary Amendment Eff. 

October 1. 1987. for a Period of 180 Days to Expire on March 

28, 1988; 

Authority G.S. 96-29; 126-4(4); 

Eff. December 1. 1985; 

RRC Objection January 21. 1988; 

Curative Amended Eff. November 1. 1988; 

Amended Eff. August L, 2000; June 1. 1992; March 1. 1990; 

November 1. 1989; 

Amended Eff. August I. 2000. 

SUBCHAPTER 1J - EMPLOYEE RELATIONS 

,0503 MINIMUM PROCEDURAL REQUIREMENTS 

The following provisions are the minimum requirements for 
approval by the State Personnel Commission. 

(!) An employee with a grievance that does not allege 
unlawful discrimination as defined by G.S. 126-16 
or G.S. 126-36. that does not allege a violation of 
G.S. l26-7.1(a)or(c), G.S. 126-82. or that does not 
allege a denial of employment or promotion in 
violation of G.S. 126-14.2 shall be required to first 
discuss the problem with the immediate supervisor. 
Where the grievance does not fall within the 
administrative or decision-making authority of the 
immediate supervisor, the immediate supervisor, 
shall within 48 hours of receipt of the grievance, 
refer the grievance to the lowest level supervisor 
with administrative or decision-making authority 
over the subject matter of the grievance and notify 
the employee of the fact of and the basis for the 
referral. The agency grievance procedure must 
outline those issues in addition to contested case 
issues under G.S. 1 26-34. 1 . if any. that are gricvable 
under each agencys internal grievance procedure 
and whether and to what extent persons who have 
not attained career status under G.S. 126-1.1 may 
utilize the agency grievance procedure. 

(2) The employee shall have the right to have the 
decision of the immediate supervisor reviewed. The 
step or steps after the immediate supervisor's step 



must include a step at which the employee has the 
right to orally present the grievance and where the 
reviewer is outside (he employee's chain of 
command. 

(3) Any decision rendered after the step of the 
supervisor's decision shall be issued in writing and 
the final agency decision shall be issued within a 
reasonable period of time as defined in this Section. 

(4) At the step involving the reviewer (person or body) 
outside the employee's chain of command, the 
employee shall have the right to challenge whether 
the reviewer can render an unbiased decision. The 
agency grievance procedure shall establish a process 
for challenging the reviewer's impartiality and the 
process for the selection of a replacement when 
necessary. 

(5) For matters that are contested case issues under G.S. 
1 26-34. 1 . if the employee is not satisfied by the final 
decision of the agency head, the employee shall 
have the right to appeal to the State Personnel 
Commission within 30 days of receipt of the final 
agency decision. If the employee is unable within a 
reasonable period of time to obtain a final agency 
decision, the employee's right of appeal is governed 
by G.S. l50B-23(f). 

(6) The agency shall state the methods of notifying 
current employees and newly appointed employees 
of any change to the agency grievance procedure no 
later than 30 days prior to the effective date of the 
change. 

(7) The agency shall establish the time limit for the 
agency and employee to respond at each step in the 
grievance procedure. No time limit for an agency to 
respond or to act shall be more than twice the time 
limit for the employee. 

(8) The grievance procedure shall include the effective 
date of the procedure and of any changes to the 
procedure. 

(9) The grievance procedure shall comply with the 
requirements of 25 NCAC U .0615. 

History Note: Authority G.S. 126-4(9); 126-4(10); 126-35; 

150B-23; 

Eff. February I. 1976; 

Amended Eff. Aueust L 2000 ; December I. 1995; April 1. 

1989; December 1. 1985; October 1. 1980; August 1. 1977. 

.0506 DISCRIMINATION 

(a) A state employee has the right of direct appeal to the 
State Personnel Commission or has the option of using the 
grievance procedure established within the employee's agency 
if the employee so desires. If an employee elects to utilize the 
agency grievance procedure, the employee must appeal an 
alleged act of discrimination within the time frames set by the 
agency grievance procedure. An employee who chooses to 
bypass the agency's internal grievance procedure and appeal 



14:10 



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November 15, 1999 



881 



APPROVED RILES 



directly to the Commission must do so within 30 calendar days 
of notice of the alleged discriminatory action. 

(b) An employee who alleges unlawful workplace 
harassment shall have the right to bypass any step in the 
applicable agency procedure involving review of or decisions 
by the alleged harasser. An employee who has an unlawful 
workplace harassment complaint must submit an unlawful 
workplace harassment complaint in writing to the agency or 
department within 30 calendar days of the alleged harassing 
action. The agency or department has 60 calendar days to take 
appropriate action, if any. in response to the complaint. After 
the agency or department has had 60 calendar days in which to 
take appropriate action, if any, in response to the complaint of 
unlawful workplace harassment, the employee may file a 
complaint of unlawful workplace harassment with the State 
Personnel Commission within 30 calendar days of the 60th 
day of the period of time which the agency or department is 
given to consider the unlawful workplace harassment 
complaint and take appropriate action, if any. 

Authority G.S. 126-4(9); 126-4(17); 126-7.2; 126-16; 126- 

34 J; 126-34.2; 126-38; 

Eff. February 1. 1976; 

Amended Eff. December 1. 1995; 

Temporary Amendment Eff. February 18, 1999; 

Amended Eff. August L 2000 . 

.0603 APPEALS 

(a) A career employee who has been demoted, suspended or 
dismissed shall have 15 calendar days from the date of his 
receipt of written notice of such action to file an appeal with 
his department/university grievance procedure. Grievances 
which do not allege discrimination, a violation of G.S. 126- 
7.1(a) or (c), a violation of G.S. 126-82. or that do not allege a 
denial of employment or promotion in violation of G.S. 126- 
14.2 must follow the department or university grievance 
procedure. An appeal to the State Personnel Commission of a 
final departmental or university decision must be filed with the 
Office of Administrative Hearings in accordance with G.S. 
150B-23 within 30 calendar days of receipt of the final agency 
decision. Grievances which allege unlawful workplace 
harassment must be submitted in writing to the agency or 
department, within 30 calendar days of the alleged harassing 
action, and the agency or department must be given 60 
calendar days in which to take appropriate remedial action, if 
any. An appeal to the State Personnel Commission of 
unlawful workplace harassment must be filed with the Office 
of Administrative Hearings in accordance with G.S. 150B-23 
and within 30 calendar days of the 60 lh day of the period given 
to the agency to consider the unlawful workplace harassment 
complaint. 

(b) Grievances which allege discrimination not including 
unlawful workplace harassment may. at the election of the 
employee, proceed through the department or university 
procedure or proceed directly to the State Personnel 
Commission (SPC) for a hearing by the Office of 
Administrative Hearings (OAH) and a decision by the SPC. A 



direct appeal to the SPC (such appeal involving a contested 
case hearing by the OAH and a recommended decision by that 
agency to the SPC) alleging discrimination not including 
unlawful workplace harassment must be filed in accordance 
with G.S. 150B-23 and must be filed within 30 calendar days 
of receipt of notice of the alleged discriminatory act. 

(c) Grievances which allege a violation of G.S. 126-14.2 
must be filed with the Civil Rights Division of the OAH 
within 30 calendar days after the employee or applicant 
receives written notice that the position in question has been 
filled. The employee or applicant must file a petition for a 
contested case hearing pursuant to G.S.I 26-34. 1 and Article 3 
of Chapter 150B within 15 days of the initial determination by 
the OAH Civil Rights Division that there has been a violation 
of G.S. 126-14.2. 

(d) Grievances filed on an untimely basis (see G.S. 126- 
14.4, 126-35. 126-36 and 126-38) must be dismissed. 
Allegations of discrimination raised more than 30 calendar 
days after receipt of notice of the occurrence of the alleged 
discriminatory act must be dismissed. Grievances alleging 
unlawful workplace harassment raised more than 30 calendar 
days after the 60th day of the 60-day time period given to the 
agency to consider an unlawful workplace harassment 
complaint must be dismissed. 

Authority G.S. 126-1 A; 126-35; 126-36; 126-38; 150B. Article 

3; 150B-23; 

Eff. February 1. 1976; 

Amended Eff. March 1. 1994; April 1. 1989; December 1, 

1984; October 1. 1984; 

Temporary Amendment Eff. February 18, 1999; 

Amended Eff. August 1. 2000. 



TITLE 26 OFFICE OF ADMINISTRATIVE 
HEARINGS 

CHAPTER 1 - GENERAL 

.0101 LOCATION 

The principal office of the Office of Administrative 
Hearings is located at 424 North Blount Street. Raleigh. North 
Carolina. The mailing address is 6714 Mail Service Center. 
Raleigh, NC 27699-6714. 

History Note: Authority G.S. 7A-751(a); 

Eff. January 1. 1991; 

Amended Eff. December L 1999: April 1. 1991. 

.0104 EMPLOYEE INSURANCE COMMITTEE 

(a) The Employee Insurance committee of the Office of 
Administrative Hearings shall be constituted pursuant to G.S. 
58-3 1 -60. to make insurance available to employees through 
payroll deduction. 

(b) Advertisement for submission of proposals shall be 
published in the following newspapers: Raleigh News and 



882 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



APPROVED RULES 



Observer, Charlotte Observer. Asheville Citizen-Times and 
the Wilmington Star. 

(c) Any Insurer wishing to make a presentation to the 
committee must submit a written proposal outlining its plan no 
less than 30 days prior to the date of the eommittee meeting. 

(d) All proposals shall be sent to the eommittee addressed 
as follows: Chairman, Employee Insuranee Committee. Office 
of Administrative Hearings, 6714 Mail Service Center, 
Raleigh, NC 27699-6714. 

History Note: Authority G.S. 7A-751(a); 58-31-60; 

Eff. February 1, 1987; 

Recodified from 26 NCAC I .0003 Eff. January I. 1991; 

Amended Eff. December L 1999; April I. 1991; January 1. 

1991. 

CHAPTER 2 - RULES DIVISION 

SUBCHAPTER 2C - SUBMISSION PROCEDURES FOR 

RULES AND OTHER DOCUMENTS TO BE 

PUBLISHED IN THE NORTH CAROLINA REGISTER 

AND THE NORTH CAROLINA ADMINISTRATIVE 

CODE 

SECTION .0300 - THE NORTH CAROLINA 
REGISTER 

.0303 AVAILABILITV OF THE NORTH 
CAROLINA REGISTER 

(a) An annual subscription to the Register shall be one 
hundred and ninety-five dollars ($195.00) plus NC sales tax if 
applicable. 

(b) An annual electronic subscription shall be two hundred 
and thirty-five dollars ($235.00) plus NC sales tax if 
applicable. 

(c) Individual issues shall be ten dollars ($10.00) plus N.C. 
sales tax if applicable. 

(d) A five percent discount shall be applied to the total 
subscription price when ordering multiple copies delivered to 
the same address. 

(e) A person requesting a subscription shall direct the 
request to the Office of Administrative Hearings, 6714 Mail 
Service Center, Raleigh, NC 27699-6714. 

History Note: Authority G.S. 150B-21.25; 
Temporary Adoption Eff. November 1. 1995; 
Eff. April I. 1996; 
Amended Eff. December L 1999. 

CHAPTER 4 - CIVIL RIGHTS DIVISION 



(a) Any person wishing to file a complaint of alleged 
discrimination as defined in Rule .0101 of this Section with 
the EEOC shall address a petition to: 

Director of Civil Rights Division 

Office of Administrative Hearings 

6714 Mail Service Center 

Raleigh, NC 27699-6714 

01 

District Director 

EEOC 

129 West Trade Street 

Charlotte, NC 28202 

(b) The petition shall include the following information: 

( 1 ) Full name, address and telephone number (work and 
home), of person making the charge: 

(2) Full name and address of person or agency against 
whom the charge is made (the respondent): 

(3) A clear and concise statement of the facts, including 
pertinent dates, constituting the alleged unlawful 
employment practices; 

(4) A statement of specific harm and dates the harm 
occurred: 

(5) For each harm - a statement specifying the act. 
policy or practice which is alleged to be unlawful; 

(6) For each act. policy or practice alleged, a statement 
of the facts which lead the person to believe the act. 
policy or practice is discriminatory: 

(7) The approximate number of employees of the 
respondent employer; 

(8) A statement disclosing whether proceedings 
involving the alleged unlawful employment 
practices have been commenced before a state or 
local agency charged with the enforcement of fair 
employment practice laws and if so, the date of such 
commencement and the name of the agency. 

(c) Notwithstanding the provisions of this Paragraph (b). a 
charge is sufficient when the commission receives from the 
person making the charge a written statement sufficiently 
precise to identify the parties and to describe the action 
complained of. 

(d) The EEOC shall examine the petition and determine its 
appropriateness. If appropriate, it shall be assigned an EEOC 
docket number and forwarded to the Office of Administrative 
Hearings, the designated 706 deferral agency. 

(e) The OAH shall assess the case to determine if it is 
within its authority. If so. the case shall be assigned an OAH 
docket number. If the case is not within OAH's authority the 
case shall be returned to EEOC. 



SECTION .0100 - GENERAL 
.0102 CONTENT AND PROCEDURE 



History Note: Filed as a Temporary Rule Eff. October 15, 
1986 For a Period of 120 Days to Expire on 
February II. 1987; 
Authority G.S. 7A-759; 
Eff. February I. 1987; 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



883 



APPROVED RULES 



Amended Eff. December L 1999 ; April I. 1991: April 1. 1989. 

.0103 NOTIFICATION OF INVESTIGATION 

(a) Upon a determination to investigate a case the OAH 
shall notify the complainant and the respondent that an 
investigation will be commenced. 

(b) Any person involved in a case wishing to submit 
information regarding the case must do so through written 
correspondence and sent to: 

Director of Civil Rights Division 

Office of Administrative Hearings 

6714 Mail Service Center 

Raleigh. NC 27699-6714 

The correspondence must state the names of complainant and 

the respondent and the OAH docket number. 

History Note: Filed as a Temporary Rule Eff. October 15, 

1986 For a Period of 120 Days to Expire on 

February 11, 1987: 

Authority G.S. 7A-759; 

Eff. February I. 1987: 

Amended Eff. December L 1999 : April 1. 1991: April 1. 1989. 

.0104 ADDITIONAL INFORMATION 

Persons desiring information in addition to that provided in 
a particular case may contact: 

Civil Rights Division 

Office of Administrative Hearings 

6714 Mail Service Center 

Raleigh. NC 27699-6714 

History Note: Filed as a Temporary Rule Eff. October 15. 

1986 For a Period of 120 Days to Expire on 

Februan 11. 1987: 

Authority G.S. 7A-759; 

Eff. February 1. 1987: 

Amended Eff. December L 1999 : April I. 1991: April 1. 1989. 



.0202 CONTENT AND FILING PROCEDURES 

(a) Forms for filing political discrimination complaints may 
be obtained from the Civil Rights Division, 6714 Mail Service 
Center. Raleigh. NC 27699-6714 or 919-733-0431. Any 
person wishing to file a complaint of alleged political 
discrimination shall address the complaint to: 

Director of Civil Rights Division 

Office of Administrative Hearings 

6714 Mail Service Center. 

Raleigh. NC 27699-6714 

(b) The complainant may file a political discrimination 
complaint and related documents by facsimile (fax) 
transmission during regular office hours. The faxed 
complaints and documents shall be deemed a "filing" within 
the meaning of 26 NCAC 4 .0201(3) provided the original 
complaint or documents are received by the Civil Rights 
Division within five business days following the faxed 
transmission. 

(c) The complaint shall include the following information: 



(I) 



(2) 



(3) 
(4) 
(5) 
(6) 

(7) 

(8) 



Full name, address and telephone number (work and 

home) of person making the complaint; 

Full name, address and telephone number of the 

agency against whom the complaint is made (the 

respondent); 

The basis of the complaint (hiring or promotion); 

The date the alleged discrimination occurred: 

The name(s) of the individualist hired or promoted; 

A statement disclosing the particulars of the 

employment decision; 

The signature of the person making the complaint; 

and 

The date the complainant signed the complaint. 



History Note: Authority G.S. 7A-751: 126-14.4: 
Temporary Adoption Eff. January 1, 1998: 
Eff. August 1, 1998: 
Amended Eff. December L 1999: August 1. 1998. 



SECTION .0200 - POLITICAL DISCRIMINATION 
COMPLAINTS 



884 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



RULES REVIEW COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Wednesday. Novcmher 1 7. 
1 999. 10:00 a.m.. at 1 307 Glenvvood Ave., Assembly Room. Raleiirh. NC. Anyone wishins to submit written comment on 



any rule before the Commission should submit those comments to the RRC staff, the agency, and the individual 
Commissioners by Friday. November 12. 1999. a| 5:00 p.m. Specific instructions and addresses may be obtained from the 
Rules Review Commission at 919-733-2721. Anyone wishing to address the Commission should notify the RRC staff and 
the aeencv at least 24 hours prior to the meetine. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Teresa L. Smallwood. Vice Chairman 
John Arrowood 

Laura Devan 

Jim Funderburke 

David Twiddy 



Appointed by House 

Paul Powell. Chairman 

Walter Futch 

Jennie J. Hayman 

George Robinson 

R. Palmer Suss: 



RULES REVIEW COMMISSION MEETING DATES 



November 17. 1999 
December 16. 1999 
January 20. 2000 



February 17.2000 
March 16.2000 
April 13.2000 



LOG OF FILINGS 
RULES SUBMITTED: SEPTEMBER 20, 1999 THROUGH OCTOBER 20, 1999 



AGENCY/niYISIO 



RILE NAME 



DEPARTMENT OF/BOARD OF AGRICULTURE 

Importation Requirements: Swine 
Brucellosis Requirements for Sale of Cattle 
Certificates: Cattle and Swine Removed 

DEPARTMENT OF COMMERCE/BANKING COMMISSION 

Definitions 

Filings 

Application for Licensure 

Fees 

Issuance 

Nontransferability of License 

Annual Renewal of License 

Posting of License 

Surrender of License 

Posting of Fees 

Cash-Out Transactions 

Limitation on Delayed Deposit Check Cashing 

Books and Records 

Examinations; Investigations 

Amendments to Information on File 

Expansion or Relocation 

Impairment of Financial Requirements 

Report of Information to Commissioner 

Enforcement Actions 



IE CITATION 


ACTION 


2 NCAC 52B .0207 


Amend 


2 NCAC 52B .0302 


Amend 


2 NCAC 52E .0209 


Amend 


4 NCAC 3 L .0101 


Adopt 


4 NCAC 3L .0102 


Adopt 


4 NCAC 3L .0201 


Adopt 


4 NCAC 3L .0202 


Adopt 


4 NCAC 3L .0301 


Adopt 


4 NCAC 3L .0302 


Adopt 


4 NCAC 3L .0303 


Adopt 


4 NCAC 3L .0401 


Adopt 


4 NCAC 3L .0402 


Adopt 


4 NCAC 3L .0403 


Adopt 


4 NCAC 3L .0404 


Adopt 


4 NCAC 3L .0405 


Adopt 


4 NCAC 3L .0501 


Adopt 


4 NCAC 3L .0502 


Adopt 


4 NCAC 3L .0601 


Adopt 


4 NCAC 3L .0602 


Adopt 


4 NCAC 3L .0603 


Adopt 


4 NCAC 3L .0604 


Adopt 


4 NCAC 3L .0701 


Adopt 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



885 



RULES REVIEW COMMISSION 



DHHS/DIVISION OF FACILITY SERVICES 

Definitions 

Required Performance Standards 

Definitions 

Information Required of Applicant 

Required Performance Standards 

Definitions 

Information Required of Applicant 

Required Performance Standards 

Definitions 

Definitions 

Required Performance Standards 

Required Performance Standards 

Applicability of Rules Related to 1999 State Plan 

Certificate of Need Review Categories 

Certificate of Need Review Schedule 

Multi-County Groupings 

Service Areas and Planning Areas 

Reallocations and Adjustments 

Acute Care Bed Need Determination 

Rehabilitation Bed Need Determination 

Ambulatory Surgical Facilities Need Determination 

Open-Heart Surgery Services 

Heart-Lung Bypass Machines 

Fixed Cardiac Catheterization Equipment 

Mobile Cardiac Catheterization Equipment 

Burn Intensive Care Services Need Determination 

Positron Emission Tomography Scanners Need Deter 

Bone Marrow Transplantation Services Need Deter 

Solid Organ Transplantation Services Need 

Gamma Knife Need Determination 

Lithotnpter Need Determination 

Radiation Oncology Treatment Centers Need 

Magnetic Resonance Imaging Scanners Need 

Nursing Care Bed Need Determination 

Home Health Agency Office Need Determination 

Dialysis Station Need Determination 

Hospice Need Determination 

Hospice Inpatient Facility Bed Need 

Psychiatric Bed Need Determination 

Chemical Dependency Treatment Bed Need 

Intermediate Care Beds for Mentally Retarded 

Policies for General Acute Care Hospitals 

Policies for Inpatient Rehabilitation Services 

Policy for Ambulatory Surgical Facilities 

Policy for Provision of Hospital-Based Care 

Policy for Nursing Care Beds 

Policy for Determination of Need 

Policy for Relocation of Certain Nursing Beds 

Policy for Home Health Services 

Policy for End-Stage Renal Disease Dialysis 

Policies for Psychiatric Inpatient Facilities 

Policy for Chemical Dependency Treatment 

Policies for Intermediate Care Facilities 

Definitions 

Policies and Procedures 

Certification Required 



10NCAC3R 


.1613 


Amend 


10NCAC3R 


.1615 


Amend 


1 NC AC 3R 


.1713 


Amend 


1 f) NCAC 3R 


.1714 


Amend 


10NCAC ^R 


.1715 


Amend 


10 NCAC 3R 


.1912 


Amend 


10 NCAC 3R 


.1913 


Amend 


10 NCAC 3R 


.1914 


Amend 


10 NCAC 3R 


.21 13 


Amend 


10 NCAC 3R 


.2713 


Amend 


10 NCAC 3R 


.2715 


Amend 


1 NCAC 3R 


.4203 


Amend 


10 NCAC 3R 


.6201 


Adopt 


1 NCAC 3R 


.6202 


Adopt 


10 NCAC 3R 


.6203 


Adopt 


10 NCAC 3R 


.6204 


Adopt 


10 NCAC 3R 


.6205 


Adopt 


1 NCAC 3R 


.6206 


Adopt 


10 NCAC 3R 


.6207 


Adopt 


10 NCAC 3R 


.6208 


Adopt 


10 NCAC 3R 


.6209 


Adopt 


10 NCAC 3R 


.6210 


Adopt 


10 NCAC 3R 


.6211 


Adopt 


10 NCAC 3R 


.6212 


Adopt 


10 NCAC 3R 


.62 1 3 


Adopt 


10 NCAC 3R 


.6214 


Adopt 


10 NCAC 3R 


.6215 


Adopt 


10 NCAC 3R 


.6216 


Adopt 


10 NCAC 3R 


.6217 


Adopt 


10 NCAC 3R 


.6218 


Adopt 


10 NCAC 3R 


.6219 


Adopt 


10 NCAC 3R 


.6220 


Adopt 


10 NCAC 3R 


.6221 


Adopt 


10 NCAC 3R 


.6222 


Adopt 


10 NCAC 3R 


.6223 


Adopt 


10 NCAC 3R 


.6224 


Adopt 


10 NCAC 3R 


.6225 


Adopt 


10 NCAC 3R 


.6226 


Adopt 


10 NCAC 3R 


.6227 


Adopt 


10 NCAC 3R 


.6228 


Adopt 


10 NCAC 3R 


.6229 


Adopt 


10 NCAC 3R 


.6230 


Adopt 


10 NCAC 3R 


.6231 


Adopt 


10 NCAC 3R 


.6232 


Adopt 


10 NCAC 3R 


.6233 


Adopt 


10 NCAC 3R 


.6234 


Adopt 


10 NCAC 3R 


.6235 


Adopt 


10 NCAC 3R 


.6236 


Adopt 


10 NCAC 3R 


.6237 


Adopt 


10 NCAC 3R 


.6238 


Adopt 


10 NCAC 3R 


.6239 


Adopt 


10 NCAC 3R 


.6240 


Adopt 


10 NCAC 3R 


.6241 


Adopt 


10 NCAC 3 S 


0108 


Repeal 


10 NCAC 3 S 


0109 


Repeal 


10 NCAC 3S 


0207 


Repeal 



886 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



RULES REVIEW COMMISSION 



Types of Certification 


10NCAC3S .0208 


Repeal 


Application 


10NCAC3S .0209 


Repeal 


Inspection 


10NCAC3S .0210 


Repeal 


Review Team: Review Process 


10NCAC3S .0211 


Repeal 


Adverse Action 


10NCAC3S.0213 


Repeal 


Procedure for Appeal 


10NCAC3S .0214 


Repeal 


Composition of Staff 


10NCAC3S.0307 


Repeal 


Minimal Education Standards 


10NCAC3S .0308 


Repeal 


Admission Criteria 


10NCAC3S .0407 


Repeal 


Patient Assessment 


I0NCAC3S .0408 


Repeal 


Team Coordination and Stat tings 


10NCAC3S .0506 


Repeal 


Cardiac Therapy 


10NCAC3S .0507 


Repeal 


Diet Therapv 


10NCAC3S .0508 


Repeal 


Psychological Services 


10NCAC3S.0509 


Repeal 


Vocational Rehabilitation Counseling and Services 


10NCAC3S .0510 


Repeal 


Review 


10NCAC3S .0511 


Repeal 


Progress Evaluation and Follow-Up Procedures 


10NCAC3S .0614 


Repeal 


Medical Follow-Up 


10NCAC3S .0615 


Repeal 


Cardiac Therapy Follow-Up 


10NCAC3S .0616 


Repeal 


Dietary Follow-Up 


10NCAC3S .0617 


Repeal 


Psychological Follow-Up 


I0NCAC3S .0618 


Repeal 


Vocational Rehabilitation Follow-Up 


I0NCAC3S .0619 


Repeal 


Criteria for Discharge 


10NCAC3S .0706 


Repeal 


Discharge Plan 


10NCAC3S .0707 


Repeal 


Policies and Procedures 


10NCAC3S .0806 


Repeal 


Record Review Consent 


10NCAC3S.0807 


Repeal 


Content of Medical Record 


10NCAC3S .0808 


Repeal 


Emergency Plan 


10NCAC3S.0901 


Repeal 


Emergency Equipment 


10NCAC3S .0902 


Repeal 


Personnel 


1ONCAC3S.0903 


Repeal 


Emergency Drills 


10NCAC3S .0904 


Repeal 


Program Requirements 


10NCAC3S.1001 


Repeal 


Graded Exercise Testing Laboratory Evaluation 


10NCAC3S .1002 


Repeal 


Cardiac Therapy 


10NCAC3S .1003 


Repeal 


Dietary Program 


10NCAC3S .1004 


Repeal 


Psychological Program 


10NCAC3S .1005 


Repeal 


Vocational Rehabilitation Program 


I0NCAC3S .1006 


Repeal 


Definitions 


10NCAC3S .1101 


Adopt 


Certification Required 


10NCAC3S .1201 


Adopt 


Certification Process 


10NCAC3S .1202 


Adopt 


Certificate Renewal 


10NCAC3S .1203 


Adopt 


Certification Following Program Changes 


10NCAC3S .1204 


Adopt 


Inspections 


10NCAC3S .1205 


Adopt 


Adverse Action 


10NCAC3S .1206 


Adopt 


Procedure for Appeal 


10NCAC3S .1207 


Adopt 


Staff Requirements and Responsibilities 


10NCAC3S .1301 


Adopt 


Policies and Procedures 


10NCAC3S.1302 


Adopt 


Continuous Quality Improvement 


10NCAC3S .1303 


Adopt 


Patient Rights 


10NCAC3S .1401 


Adopt 


Admission and Discharge 


10NCAC3S .1501 


Adopt 


Patient Assessment 


10NCAC3S .1601 


Adopt 


Care Planning 


10NCAC3S .1701 


Adopt 


Follow-up Evaluation 


10NCAC3S .1702 


Adopt 


Personnel 


10NCAC3S .1801 


Adopt 


Exercise Therapy 


10NCAC3S .1802 


Adopt 


Nutrition Services 


I0NCAC3S .1803 


Adopt 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



887 



RULES REVIEW COMMISSION 



Menial Health Services 

Vocational Rehabilitation Counseling and Services 

Patient Education 

Emergency Plan 

Emergency Equipment 

Emergency Drills 

Medical Records - Policies and Procedures 

Content of Medical Records 

Physical Environment and Equipment 

Graded Exercise Testing Laboratory 

Exercise Therapy 

Nutrition Services 

Mental Health Services 

Vocational Rehabilitation Services 
DHHS/COMMISSION FOR THE BLIND 

Secretary^ Review & Final Decision 

Civil Action 
DHHS/COMMISSION FOR MH/DD/SAS 

Schedule IV 
DEPARTMENT OF INSURANCE 

Viatical Settlement Providers 
DEPARTMENT OF INSURANCE 

Collateral Security Returned 

Continuing Education 
DENR/ENYTRONMENTAL MANAGEMENT COMMISSION 

New Source Performance Standards 

Control of Emissions from Abrasive Blasting 

Definitions 

Control of Odors from Animal Operations 

Best Management Plans for Animal Operations 

Reporting Requirements for Animal Operations 

Activities Exempted from Permit Requirements 
DENR/MARINE FISHERIES COMMISSION 

Fishery Resource Grant Program 
DENR/COMMISSION FOR HEALTH SERVICES 

General 

Definitions 

Birth Defects Advisory Committee 

Surveillance of Birth Defects 

Confidentiality 

Release of Monitoring Program Information 
STATE BOARDS/N C ACUPUNCTURE LICENSING BOARD 

Qualifications for Licensure 



10NCAC3S 


1804 


Adopt 


10NCAC3S 


.1805 


Adopt 


10NCAC3S 


.1806 


Adopt 


10NCAC3S 


1901 


Adopt 


10NCAC3S 


.1902 


Adopt 


10NCAC3S 


1903 


Adopt 


10NCAC3S 


.2001 


Adopt 


10NCAC3S 


.2002 


Adopt 


10NCAC3S 


.2101 


Adopt 


10NCAC3S 


.2102 


Adopt 


10NCAC3S 


.2103 


Adopt 


10NCAC3S 


.2104 


Adopt 


10NCAC3S 


.2105 


Adopt 


10NCAC3S 


.2106 


Adopt 


10NCAC 19G.0823 


Amend 


10NCAC 19G.0827 


Amend 



IONCAC45 .0205 



iincac i: 



1 702 



15NCAC3I.0117 

15NCAC26C .0101 
15 NCAC 26C .0102 
15 NCAC 26C .0103 

15 NCAC 26C .0104 
15 NCAC 26C .0105 
15 NCAC 26C .0106 

21 NCAC 1 .0101 



STATE BOARDS/N C LICENSING BOARD FOR GENERAL CONTRACTORS 



Increase in Limitation 
STATE BOARDS/N C BOARD OF NURSING 

Reexamination 
STATE BOARDS/N C BOARD OF PHARMACY 

Absence of Pharmacist 

Prerequisites for Disease State Management Exam 
STATE BOARDS/N C PSYCHOLOGY BOARD 

HSP-P Requirements 

HSP-PA Requirements 
OFFICE OF ADMINISTRATIVE HEARINGS 

Contested Case Hearing 



21 NCAC 12 

21 NCAC 36 

2 1 NCAC 46 
2 1 NCAC 46 

2 1 NCAC 54 
21 NCAC 54 



0504 

0213 

1413 
1508 

2704 
2706 



Amend 



Amend 



11 NCAC 13 .0514 


Repeal 


1 1 NCAC 1 3 .05 1 8 


Repeal 


15 NCAC 2D .0524 


Amend 


1 5 NCAC 2D .054 1 


Adopt 


15 NCAC 2D. 1801 


Adopt 


1 5 NCAC 2D . 1 802 


Adopt 


1 5 NCAC 2D . 1 803 


Adopt 


15 NCAC 2D. 1804 


Adopt 


15 NCAC 2Q .0102 


Amend 



26 NCAC 4. 01 08 



Repeal 

Adopt 
Adopt 
Adopt 
Adopt 
Adopt 
Adopt 

Amend 

Amend 

Amend 

Amend 
Adopt 

Amend 
Amend 

Amend 



888 



NORTH CAROLINA REGISTER 



November 75, 1999 



14:10 



RULES REVIEW COMMISSION 



RULES REVIEW COMMISSION 

September 30, 1999 
MINUTES 

The Rules Review Commission met on September 30, 1999, in the Assembly Room of the Methodist Building. 1307 Glenwood 
Avenue, Raleigh. North Carolina. Commissioners in attendance were Chairman Paul Powell. Teresa Smallwood. Jennie J. 
Hayman, Walter Futch. Jim Funderhurk. John Arrowood. Laura Devan, David R. Twiddy. and George Robinson. 

Staff members present were: Joseph J. DeLuca. Staff Director: Bobby Bryan. Rules Review Specialist; and Sandy Webster. 



The following people attended: 
Harry Wilson 
Dedra Alston 
Marge Howell 
Harry Payne 
Becky Brown 
Bob Andrews 
Kevin Beauregard 
Tom Hayes 
Angela S. Waldorf 
Joy Mayo 
Cleo A. Saulter 
Linda Taylor 
Barbara Laymon 
Michael E. Lynch 
Glenn Jeranes 
White Watkins 
Tom West 
Steve Steinbeck 
Glenn Cutler 
Sabrina Lamar 
R. Todd Brown 
Jennie W. Mau 
Dr. Ada M. Fisher 
Tim H. Childers 
Lisa Thompson 
Amy Fullbright 
Robin Pendergraft 
Thomas Allen 
Butch Gunnells 
Stephen W. Marshall 
Francis M. Nevils 
Libby Manly 
Lori Khamala 
Shirley Bullard 
David Hance 
Greg Malhoit 
Hazel Chavis 
Bettie Ragland 
Jay Gervasi 
Tom O'Connor 
James Sanders 
Leslie Bevacqua 
Fran E. Preston 



LABOR 



State Board of Education 
DENR 

LABOR 

LABOR 

LABOR 

LABOR 

LABOR 

LABOR 

Womble Carlyle 

AFGW Union #1028 

AFGW Union #1028 

DHHS/DPH/WCH 

TWU 569 

TWU 569 

AFMA 

Poyner and Spruill 

DENR/OSWS 

Office of the Chief Medical Examiner 

Duke University 

CSX Transportation 

Attorney General 

Rowan County School Board 

LABOR 

JUSTICE/Criminal Justice Standards 

Hunton & Williams 

Attorney General 

DENR/DAQ 

N C Soft Drink Association 

University of North Carolina 

DENR/DLR/LQS 

SAF 

SAF 

DHHS/CHS 

DENR/DWQ/GWS 

N C Justice & Community Development Center 

CAT 

CAT 

Donaldson and Black 

NCOSH Project 

NCOSH Project 

N C Citizens for Business & Industry 

N C Retail Merchants Association 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



889 



RULES REVIEW COMMISSION 



Kathleen S. Glancy Attorney 

J L Holliday DHHS/DPH/CDC 

Russell Herman Citizen 

Scott) Jordan Paee Local 2-0425 

Alyce Gowdy Wright NCOSH 

Liz Sessoms CWEA 

Mary Granger CWEA 

Marilyen Gilliam CWEA 

Steve Smith Lawyer 

William Plyler Lawyer 

Molly Masich OAH 

William H. Potter, Jr. N C Dental Society 

Y H Patt Attorney 

APPROVAL OF MINUTES 

The meeting was called to order at 10:01 a.m. with Chairman Powell presiding. He asked for any discussion, comments, or 
corrections concerning the minutes of the August 19. 1999 meeting. There being none, the minutes were approved. 

FOLLOW-UP MATTERS 

12 NCAC 9A .0103: JUSTICE/Criminal Justice Education & Training Standards Commission - The amended rule submitted by 
the agency was approved by the Commission. 

12 NCAC 9B .0106: JUSTICE/Criminal Justice Education & Training Standards Commission - The amended rule submitted by 
the agency was approved by the Commission. 

12 NCAC 9B .0107. .0113. .0201. .0202. .0203. .0204. .0205. .0206. .0226. .0227. .0228. .0232. .0233 and .0305: 
JUSTICE/Criminal Justice Education & Training Standards Commission - Rules .0107 and .0113 were approved by the 
Commission. The rewritten rules submitted by the agency for .0201, .0202. .0203. .0204. .0205. .0206. .0226. .0227. .0228, 
.0232, .0233, and .0305 were approved by the Commission. 

12 NCAC 9C .021 1, .0212. and .0213: JUSTICE/Criminal Justice Education & Training Standards Commission - The rewritten 
rules submitted by the agency were approved by the Commission. 

12 NCAC 10B .0103. .0502. and .0601: JUSTICE/Sheriffs" Education & Training Standards - The Commission has not yet met 
and thus there was no action taken on these rules. 

15A NCAC 7H .1805: DENR/Coastal Resources Commission - The rewritten rule submitted by the agency was approved by the 
Commission. 

15A NCAC 27 .01 10. .0201. .0301, .0410. .0420. .0430. .0701, .0810. .0820. and .0840: DENR/Well Contractors" Certification 
Commission - The rewritten rules submitted by the agency were approved by the Commission with the exception of .0701 which 
was withdrawn by the agency. 

LOG OF FILINGS 

Chairman Powell presided over the review of the log and all rules were approved with the following exceptions: 
LOG #156 -RILES FILED JULY 20 -AUGUST 20, 1999 

13 NCAC 7F .0601. .0603. .0605. and .0606: DEPARTMENT OF LABOR - The Commission objected to these rules due to lack 
of statutory authority. Each of these rules has a stated effective date of January 1,2001. Session law 1999-395. Section 19.1(a) 
prohibits the Department from using, encumbering, or committing any funds from the 1999-2000 or 2000-2001 fiscal years 
appropriation to implement or enforce an ergonomics standard. There is therefore no authority for these rules to become effective 
before July 1. 2001. Commissioner Twiddy voted not to object. Commissioner Hay man recused herself from all Department of 
Labor rules. 

890 NORTH CAROLINA REGISTER November 15, 1999 14:10 



RULES REVIEW COMMISSION 



1 3 NCAC 7F .0602: DEPARTMENT OF LABOR - The Commission objected to this rule due to ambiguity and lack of statutory 
authority for the effective date. In .0602(2) it is not clear what is meant by "awkward" objects or "extended" reaching. 
Commissioners Twiddy. Futch. and Smallwood voted not to object. 

1 3 NCAC 7F .0604: DEPARTMENT OF LABOR - The Commission objected to this rule due to ambiguity and lack of statutory 
authority for the effective date. In .0604(b) it is not clear what is meant by "reduce. ..the employee's exposure." "maximum extent 
practicable." and "economically and technologically reasonable and feasible." Commissioner Smallwood voted not to object. 

16 NCAC 6D .0503: STATE BOARD OF EDUCATION - The Commission objected to this rule due to lack of statutory 
authority. The provision in .0503(b)(4) authorizing the State Board of Education to allow enrollment in post secondary institutions 
in excess of five percent of a high school's enrollment is a waiver provision without specific guidelines as required by G.S. 150B- 
19(6). Commissioner Devan voted against the motion. 

16 NCAC 6D .0504: STATE BOARD OF EDUCATION - The Commission objected to this rule due to ambiguity. In (b)(5) it is 
not clear what is meant by "upper elementary levels." Commissioner Devan voted against the motion. 

21 NCAC 20 0120: N C BOARD OF REGISTRATION FOR FORESTERS - The Commission objected to this rule due to lack 
of statutory authority. There is no authority cited for the Board to approve a forester practicing as a consulting forester. The only 
authority is for the Board to receive affidavits. There is also no authority for the Board to set additional requirements as (b) does. 

24 NCAC 1 H .0103: NC HOUSING FINANCE AGENCY - This rule was withdrawn by the agency. 

Log #157 - RULES FILED AUGUST 20 - SEPTEMBER 20, 1999 

15A NCAC 16A .1 104: DHHS/Commission for Health Services - The Commission felt that the rule may accurately reflect the 
agency's requirements, but that the language could be more well written. Il instructed the agency and staff to review and rewrite 
the rule as needed. 

15A NCAC 19A .0502: DHHS/Commission for Health Services - The Commission objected to the original rule due to lack of 
statutory authority. There is no authority to add to the requirements listed in (c) without going through rulemaking. This is 
precisely what the agency wants to do, i.e. add "eligibility requirements" to the provider's agreement without rulemaking. The 
rewrilten rule submitted by the agency was approved by the Commission. 

16 NCAC 6H .01 10: STATE BOARD OF EDUCATION - The Commission objected to this rule due to ambiguity. It is not 
clear what standards the State Board of Education will use in approving hearing officers. 

25 NCAC IB .0354: STATE PERSONNEL COMMISSION - This rule was withdrawn by the agency. 

25 NCAC IB .0437: STATE PERSONNEL COMMISSION - The Commission objected to this rule due to lack of statutory 
authority. The provisions in (b) and (h) allowing the Commission to extend the time limits for presentations is a waiver provision 
without the specific guidelines required by G.S. 150B-19(6). The provisions in (c). (d). (e), and (h). allowing the Commission to 
extend the time to file documents lor "good cause shown" is also a waiver provision without specific guidelines. 

25 NCAC 1H .0605: STATE PERSONNEL COMMISSION - The Commission objected to this rule due to ambiguity. In (d). it 
is not clear if the term "immediate family" includes others living in the same household or others. 

25 NCAC 1H .0606: STATE PERSONNEL COMMISSION - The Commission objected to this rule due to lack of statutory 
authority and ambiguity. In (d), there is no authority to require agencies to develop a plan according to guidelines that have not 
been adopted as rules. It is also not clear what standards the Commission will use in approving the Plans. There is no authority to 
require agencies without approved plans to follow a process in a plan not adopted as a rule. 

25 NCAC U .0512: STATE PERSONNEL COMMISSION - This rule was withdrawn by the agency. 

COMMISSION PROCEDURES AND OTHER MATTERS 



14:10 NORTH CAROLINA REGISTER November 15, 1999 891 



^aZtfi 



RULES REVIEW COMMISSION 



The election of officers was postponed until next month. The November meeting was changed due to a CLE scheduled for the 
regular date and the April meeting was changed due to the return of the legislature. The November meeting will be held on the 
17 lh and the April meeting on the 13 th . William Plyler stated that he had filed a motion to dismiss the lawsuit but he expected that 
the court would wait to see what happens to Senate Bill 960 before making a decision. He will keep the Commissioners apprised 
at all times. 

The next meeting will be on November 17, 1999. 

The meeting adjourned at 3:13 p.m. 

Respectfully submitted. 
Sandy Webster 



892 NORTH CAROLINA REGISTER November 15, 1999 14:10 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions along with an 
index to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. 
Copies of the decisions listed in the index and not published are available upon request for a minimal charge by 
contacting the Office of Administrative Hearings, (919) 733-2698. Also, the Contested Case Decisions are available on 
the Internet at the following address: http://www.state.nc.us/OAH/hearings/decision/caseindex.htm. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JULIAN MANN, III 

Senior Administrative Law Judge 
FRED G. MORRISON JR. 

ADMINISTRA TIVE LA W JUDGES 



Sammie Chess Jr. 
Beeeher R. Gray 
Melissa Owens 



Meg Scott Phipps 

Robert Roosevelt Reiily Jr. 

Bervl E. Wade 



AGENCY 

ADMINISTRATION 

Bntthaven. Inc. \. Department of Administration 

and 
Pnva-Trends. Inc. 
Laidlaw Transit Svcs. Inc. v. Katie G. Dorsett, Sec'y/Dept/ Administration 99 DOA 0102 

OFFICE OF ADMINISTRATIVE HEARINGS 

Ted Murrell. Zam. Inc. v. Office of Administrative Hearings 
Samuel Lee Ferguson v. Office of Administrative Hearings 

AGRICULTURE 

Archie McLean v Department of Agriculture 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Commission v. Keyiand. Inc., T/A Cloud 9 
Alcoholic Beverage Control Commission v. Food Lion, Inc.. Store #1351 
Alcoholic Beverage Control Commission V. Stop 1. Inc. T/A Stop 1 Grocery 
Alcoholic Beverage Control Commission v. George Steven Everett 

t/a Casino Snooks Place 
Alcoholic Beverage Control Commission \ Beech Mountain Resort, Inc. 
Alcoholic Bev. Control Comm.v. Partnership T/A Mermaid Rest. & Lge. 
Alcoholic Beverage Control Commission v. Jaeson Nyung Kim 
Alcoholic Beverage Control Commission v. Lillian Sarah Clary 
Alcoholic Beverage Control Commission v. Vnus Enterprices, LLC, 

t/a Rendez Vous Club & City of Charlotte 
Alcoholic Beverage Control Commission v. Mohammad Salitn Pirani 
Alcoholic Beverage Control Commission v. Creek Lounge. Inc. t/a 

Creek Lounge 
Delores Ann Holley v. Alcoholic Beverage Control Commission 

CRIME CONTROL AND PUBLIC SAFETY 

Ray Anthony Breeding v. Crime Control & Public Safety 

John Ray Webb v. Crime Victims Compensation Commission 

Paul Richard Mull v. Crime Vicnms Compensation Commission 

Coradene Mayhand v. Crime Victims Compensation Commission 

Bobby Mills v. Crime Vicnms Compensation Commission 

William Samuel McCraw v. Crime Victims Compensation Commission 



CASE 




NUMBER 


AL.I 


98 DOA OS 11 


Chess 


99 DOA 0102 


Momson 


99 OAH 0665 


Chess 


99OAH071S 


Chess 


98 DAG 1 770 


Reilh 


98 ABC 1099 


Overbv 


98 ABC 1270 


Grav 


98 ABC 1337 


Phipps 


98 ABC 1546 


Reiily 


99 ABC 0287 


Reiily 


99 ABC 0367 


Chess 


99 ABC 0407 


Momson 


99 ABC 06 15 


Phipps 


99 ABC 0684 


Morgan 


99 ABC 0780 


Morrison 


99 ABC 0820 


Morgan 


99 ABC 0876 


Gray 


93 CPS 0695 


Grav 


95CPS 1353 


Grav 


98 CPS 0342 


Chess 


98 CPS 0398 


Chess 


98 CPS 1412 


Wade 


98 CPS 1626 


Morrison 



DATE OF 
DECISION 



Of, 1(1/00 



06/11/99 



07/14/99 
07/16/99 



07/12/99 



01/17/99 
03/31/99 
09/29/99 
10/19/99 

08/11/99 
09/17/99 
07/09/99 
09/01/99 
10/15/99 

09/21/99 
10/13/99 

08/10/99 



09/13/99 
09/13/99 
07/26/99 
10/09/99 
08/06/99 
06/09/99 



PUBLISHED DECISION 
REGISTER CITATION 



14:02 NCR 115 



14:04 NCR 349 



14:04 NCR 347 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



893 



-'«**" 



CONTESTED CASE DECISIONS 



AGENCY 

Anson D. Looney v. Crime Victims Compensation Commission 
Elvin Williams. Jr. v. Crime Victims Compensation Commission 
Michael Anthony Powell v. Crime Victims Compensation Commission 
Mary Elizabeth Peoples Hogan v. Crime Victims Compensation Comm. 
Lemuel Ray Jenkins v. Crime Victims Compensation Commission 
Annabel! B. McCormick v. Crime Victims Compensation Commission 

ENVIRONMENT AND NATURAL RESOURCES 

R.J. Reynolds Tobacco Co v. Dept. of Environment & Natural Resources 

Town of Maysville v. Environment and Natural Resources 

Willie Setzer V. Department of Environment & Natural Resources 

Charles H. Jordan v, Brunswick County Health Department 

Jerry Franks and John Schifano. et. al v. Environment & Natural Resources 

and Wake County Board of Commissioners 
Jerry Franks and John Schifano. et. al. v. Environment & Natural Resources 

and Wake County Board of Commissioners 
James P. and Irene P. Wilson v. Cleveland Co. Health & Sanitary 
Mazzella's Restaurant. Peter D Mazzella v. Carteret County Env Health 
Roadway Express v. Department of Environment and Natural Resources 
John W. Venable v. Department of Environment and Natural Resources 
Shell Island Homeowners' Association v. DENR. Div. of Env. Health 
Ronald L. Walker, Sr.. v. Environmental Health Ala County 

Division of Air Quality 

Neighbors Against The Cullasaja Asphalt Plant & Blue Ridge Env. 
Defense League. Inc. v. Dept of Env & Natural Resources and Rhodes 
Brothers Paving. Inc and Carolina Asphalt Pavement Association 

Terrance W, Bache. Pres.. Terhane Group. Inc. v. DENR. Div/Air Quality 

XVIII Airborne Corps & Fort Bragg. Dept. of the Army. USA \ 
Environment and Natural Resources. Div of Air Quality 

J.D Owen v. Environment and Natural Resources, Div. of Air Quality 

Environmental Management 

Allen Raynor v. Environmental Management Commission 

Division of Land Resources 

Buel B Barker. Jr and Hubbard Realty of Winston-Salem, a NC Corp.. 

jointly and severally v. DENR. Div of Land Resources 
T.B. Powell. Inc v, DENR. Division of Land Resources 

Division of Marine Fisheries 

Alton Chadwick v. Division of Marine Fisheries 

Division of Water Quality' 

York Oil Company v. DENR, Division of Water Quality 

J Todd Yates and Teresa B. Yates v. DENR. Div. of Water Quality 

N.G. Purvis Farms, Inc. \ DENR, Division of Water Quality 

BOARD OF GEOLOGISTS 

Andrew M. Raring. PhD v. Board for the Licensing of Geologists 

HEALTH AND HUMAN SERVICES 

Eardley "JR" Stephens v St. Bd. of Nurse's Aides and Practitioners 

Ernest Clyde Absher and Dianna B. Absher v. Health & Human Resources 

Andrew Gamey v. Office of the Chief Medical Examiner 

J. P. Lynch V. Department of Health & Human Services 

Paul Walker. Thomas Walker & Mary Walker v. Mecklenburg Area 

Mental Health 
New Hope Living Centers. Eric D. Lewis v. Health & Human Services 
Frank McKoy v. Department of Health & Human Services 
Joan Mane McDamel v. Department of Health & Human Services 
Lonrue Hemng v. Department of Health & Human Services 
Robert H. Riley v. Office of the Governor. Office of Citizen Services 
Monica Demse Dayson v, Department of Health & Human Services 

Division of Child Development 

Shaw Speaks Child Dev Ctr v Health & Human Svcs.. Child Dev. 
Lachelle L. Parsons v. Health & Human Svcs, Div. of Child Dev, 
In The Beginning. Inc. v. Health & Human Svcs., Div. of Child De\ 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


99 CPS 0096 


Morrison 


05/25/99 




99CPS0118 


Owens 


08/03/99 




99 CPS 0426 


Reillv 


08/03/99 




99 CPS 0504 


Reilly 


07/29/99 




99 CPS 0521 


Grav 


09/08/99 




99 CPS 0564 


Phipps 


08/04/99 




98EHR 1315 


Wade 


06/04/99 


14:02 NCR 110 


99 EHR 0069 


Owens 


09/27/99 




99EHR0166 


Chess 


06/28/99 




99 EHR 0201 


Morrison 


06/28/99 




99 EHR 0344" 


Phipps 


09/28/99 





99 EHR 0380 



Phipps 



09/28/99 



99 EHR 0506 


Lassiter 


10/07/99 




99 EHR 0692 


Reilly 


08/19/99 




99 EHR 0745 


Morrison 


07/27/99 




99 EHR 0773 


Wade 


10/13/99 




99 EHR 0814 


Owens 


08/18/99 




99 EHR 1076 


Morrison 


10/18/99 




98 EHR 1735 


Gray 


09/30/99 


14: 10 NCR 900 


98 EHR 1790 


Mann 


06/23/99 




99 EHR 0283 


Wade 


08/11/99 




W EHR 0642 


Mann 


08/10/99 




99 EHR 0127 


Gray 


07/27/99 




98 EHR 1457 


Morrison 


06/09/99 




99 EHR 0632 


Wade 


10/04/99 




99 EHR 0553 


Reilh 


08/19/99 




97 EHR 1026 


Phipps 


07/26/99 


14:04 NCR 343 


98 EHR 1456 


Wade 


06/22/99 




99 EHR 0696 


Chess 


08/27/99 




99 BOG 0150 


Mann 


06/16/99 




98DHR0155 


Phipps 


08/25/99 




98DHR 1622 


Reilly 


06/17/99 




98DHR 1761 


Owens 


05/12/99 


14:01 NCR 69 


99DHR0111 


Reilly 


05/25/99 




99DHR0155 


Morrison 


08/19/99 




99DHR0170 


Owens 


05/25/99 




99 DHR 0226 


Wade 


07/06/99 




99 DHR 0305 


Reilly 


08/05/99 




99 DHR 0350 


Reilly 


06/03/99 




99 DHR 0356 


Wade 


07/21/99 




99 DHR 1041 


Reilly 


09/29/99 




99 DHR 0042 


Gray 


07/22/99 




99 DHR 0445 


Reilly 


07/19/99 




99 DHR 0575 


Mann 


07/19/99 





894 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
M MBEK 



AI..J 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Dulatown Outreach Center. Inc v. Health & Human Svcs., Child Dev. 99 DHR 0688 Owens 

Michele Denoff v. Health & Human Services, Div. of Child Dev. 99 DHR 0695 Owens 

Small World Daycare II. Trena S. McDaniel v. Health & Human Svcs.. 99 DHR 1038 Lasstter 
Div. of Child Dev. 



07/21/99 
08/05/99 
10/06/99 



Division of Facility Services 

Kelly M Poole v. Health & Human Services. Div ofFacility Services 

Norma Faye Lewis v. Health & Human Svcs.. Div. ofFacility Services 

Delia C. Jones v. Health & Human Services. Div. ofFacility Services 

Eftie Ruth Smith v. Health & Human Svcs.. Div. ofFacility Services 

Vivienne Geloria Marshall v. DHHS. Div. ofFacility Services 

Sarah L. Mathis v. DHHS. Du. ofFacility Services 

Dons Laviner Moser v. Health & Human Services. Div. of Facility Svcs. 

Norma Faye Lewis v. Health & Human Svcs.. Div. of Facility Services 

Carolyn Grant v. Health & Human Services, Div. of Facility Services 

Manon Moser Thompson v. Health & Human Svcs.. Facility Services 

Rose Mane Hadley v. Health & Human Svcs.. Div. ofFacility Services 

Sarah Frances Alford V. Health & Human Svcs.. Div ofFacility Svcs. 

Alvin L. Phynon Jr v. Health & Human Svcs.. Dept. ofFacility 

Barbara Rhue v. D.F.S. 99 DHR 0401 * ' 

Barbara Rhue v. D.F.S 99 DHR 04 14*' 

Michelle Johnson v. DHHS, Division ofFacility Services 

Esther Nieves v. Health & Human Services. Div. ofFacility Services 

Apnl De'Shelle Turner v. DHHS. Div. of Social Service. 

Program lntegnty Branch 
Shirley Ann Beck v Division of Facility Services 

Division of Medical Assistance 

Intenm HealthCare • Moms Group. Inc.. Lisa B. Moms. RN. BSN v. 

DHHS. Division of Medical Assistance 
Companion Health Care. Inc. v. Div. of Medical Assistance. DHR 



Division of Mental Health, Developmental Disabilities and Substance Abuse Services 
S.S, by her parents and next friends, D.S. & AS v. DMH/DD/SAS 99 DHR 0538 



Division of Social Services 

Robert H Riley v Iredell County DSS 

Roben H Riley v. Health <k Human Svcs.. Div. of Social Services 

Joanna Pnce v. Caldwell County Social Services 

Veronica Owens v. Dept. of Social Services Union County 

Child Support Enforcement Section 
Lindy Teachout v Depanment of Health & Human Services 
Thomas Ashley Stewart 11 v Department of Health & Human Services 
June V. Pettus v. Department of Human Resources 
Floyd W Hubbard v. Department of Human Resources 
Richard Arnold Collins v. Jones County DSS 
David S Blackwelder v. Department of Human Resources 
June V. Pettus v. Department of Human Resources 
John T. Raynor v. Department of Human Resources 
Kenneth Wayne Adair v Department of Human Resources 
Randy Snead v. Department of Human Resources 
Shawn E. Williams v. Department of Human Resources 
Hun G Stokes v. Department of Health & Human Services 
Willie D. Davis v. Department of Human Resources 
GS. Hall v Department of Health & Human Services 
Charles Stewart v. Department of Human Resources 
Kenneth A. McCrone v. Department of Human Resources 
Daniel R Klock v. Department of Human Resources 
David M. VanDyke v. Department of Human Resources 
Jerome Maddox v. Department of Health & Human Services 
Sam Anderson v Department of Human Resources 
Donald Edward Law II v Department of Human Resources 
Sechia Lee Corbett v. Department of Human Resources 



97 DHR 0629 


Chess 


06/14/99 


98 DHR 1274 "' 


Phipps 


07/02/99 


98 DHR 1680 


Gray 


06/09/99 


98 DHR 1774 


Chess 


07/14/99 


98 DHR 1786 


Phipps 


09/02/99 


99 DHR 0032 


Morrison 


09/24/99 


99 DHR 0074 


Wade 


08/06/99 


99 DHR 0144* 


Phipps 


07/02/99 


99 DHR 0145 


Mann 


06/11/99 


99 DHR 02 16 


Grav 


08/13/99 


99 DHR 0218 


Wade 


08/06/99 


99 DHR 0220 


Phipps 


06/08/99 


99 DHR 0230 


Mann 


07/07/99 


Wade 


07/30/99 




Wade 


07/30/99 




99 DHR 0546 


Grav 


10/12/99 


99 DHR 0766 


Phipps 


07/21/99 


99 DHR 0927 


Gray 


10/21/99 


99 DHR 0942 


Mann 


09/24/99 


99 DHR 0552 


Mann 


09/01/99 


99 DHR 0762 


Owens 


07/29/99 



Gray 



08/02/44 



99 DHR 0354 


Wade 


07/21/99 


99 DHR 0355 


Wade 


07/21/99 


99 DHR 0520 


Mornson 


06/10/99 


99 MIS 0677 


Mann 


08/17/99 


98 CRA 0727 


Reillv 


06/24/99 


99 CRA 0628 


Reilly 


06/14/99 


96CSE 1721*" 


Mann 


09/17/99 


96CSE 1725 


Reilly 


09/02/99 


96CSE 1810 


Reillv 


06/28/99 


97CSE0416 


Mornson 


08/24/99 


97 CSE 0867*" 


Mann 


09/17/99 


98 CSE 0054 


Grav 


10/21/99 


98 CSE 0229 


Mornson 


06/30/99 


98 CSE 0544 


Grav 


10/21/99 


98 CSE 0845 


Phipps 


09/21/99 


98 CSE 0898 


Grav 


07/23/99 


98 CSE 1387 


Mann 


09/17/99 


98 CSE 1392 


Reilly 


06/24/99 


98 CSE 1419 


Mann 


09/17/99 


98 CSE 1435 


Grav 


08/04/99 


98 CSE 1440 


Mornson 


10/20/99 


98 CSE 1549 


Mann 


09/17/99 


98 CSE 1 562 


Mann 


09/17/99 


98 CSE 1 5X5 


Mann 


09/17/99 


98 CSE 1586 


Mornson 


06/25/99 


98 CSE 1588 


Phipps 


09/21/99 



Consolidated Cases. 



14:10 



NORTH CAROLINA REGISTER 



November 15. 1999 



895 



_^afi2 



CONTESTED CASE DECISIONS 



AGENCY 

Shawn E- Williams v. Department o\' Human Resources 
Antonio Melendez v. Department of Health k Human Services 
William W. Heck v. Department of Human Resources 
Robert M. Chandler Jr v Department of Health & Human Sen ices 
Grady L Chosewood \ Department of Health A: Human Ser\ ices 
Fulton Allen Tillman v Department of Health & Human Services 
Nathaniel Alston v. Department of Health & Human Sen ices 
Bret Burtrum v Department of Health & Human Services 
Cednc A- Hurst v. Department of Human Resources 
Dane Wesley Ware V, Department of Health A: Human Services 
Oscar William Willoughhy Sr v. Dept of Health & Human Services 
Kelvin E. Townsend v. Department of Health & Human Services 
Billy J. Young v. Department of Health & Human Services 
Rodney Eugene Caldwell v. Department of Health & Human Services 
Adelheide J. Cooper v. Department of Health & Human Services 
Beverly K. Thompson v. Department of Health & Human Services 
Michael L Timmer V, Department of Health & Human Services 
Elizabeth F. West v. Department of Health &. Human Services 
Troy Gibson v. Department of Health A: Human Semces 
Roy D Washington v, Department of Health & Human Services 
Everett A. Mitchell v. Department of Health & Human Services 
Corey Antoine Johnson v. Department of Health & Human Services 
Larry Lowell Dixon v. Department of Health & Human Services 
Calvin D- Alston v Department of Health & Human Services 
Marquel Simmons v. Department of Health & Human Services 
Anthony Vincente Battista v. Department of Health & Human Services 
Gerald Scott Saucier v. Department of Health & Human Services 
Lawrence Gordon Soles v Department of Health &. Human Services 
Mohamed Moustafa v. Department of Health & Human Services 
Vicky L- Day \. Department of Health & Human Services 
Matthew Conklm v. Department of Health & Human Semces 
Charlie James White v. Department of Health & Human Services 
Bennie Lamar Knighten v. Department of Health & Human Semces 
Lane Bolton v. Department of Health & Human Services 
Randy Lewis Bryant v, Department of Health & Human Services 
Earl C. Jones, Sr. v, Department of Health & Human Services 
Naion V, Pride v. Department of Health & Human Services 
Claude W. Jordan v Department of Health & Human Services 
Henry Roosevelt Mercer v, Department of Health & Human Services 
Bobby Gene Owens v. Department of Health & Human Services 
Robert F Skipper v. Department of Health & Human Services 
Debbie Galmon Moore v. Department of Health & Human Services 
Kathryn P. Fagan v Department of Health & Human Semces 
Tresha W Robinson v Department of Health & Human Services 
Robert Dwayne Kennedy v. Department of Health & Human Services 
Deborah Seegars \ Department of Health A: Human Services 
Lillian Anne Darroch \ . Department of Health A: Human Semces 
Evelyn C Pratt v. Department of Health & Human Services 
Jacqueline D Caldwell \ Department of Health A: Human Services 



CASE 




DATE OE 


NUMBER 


A LI 


DECISION 


98CSE 1613 


Phipps 


09/21/99 


98CSE 163? 


t 'hcss 


09/30/99 


98CSE 1638 


Mann 


09/17/99 


98CSE 1789 


Phipps 


05/27/99 


99 CSE 0301 


Mann 


07/01/99 


94 CSE 03 1 1 


Reilly 


06/30/99 


99CSE0317 


Mann 


07/01/99 


99 CSE 03 1 8 


Wade 


07/14/99 


99 CSE 0330 


Chess 


08/10/99 


99 CSE 0359 


Gray 


06/28/99 


99 CSE 037 1 


Morrison 


06/28/99 


99 CSE 0373 


Phipps 


07/12/99 


99 CSE 0374 


Reilly 


06/14/99 


99 CSE 0427 


Lasstter 


10/20/99 


99 CSE 0428 


Phipps 


07/19/99 


99 CSE 0435 


Reilly 


06/14/99 


99 CSE 0437 


Wade 


06/08/99 


99 CSE 045 1 


Morrison 


05/25/99 


99 CSE 0462 


Owens 


07/19/99 


99 CSE 0481 


Reilly 


06/25/99 


99 CSE 0483 


Chess 


10/05/99 


99 CSE 0486 


Gray 


09/13/99 


99 CSE 05 IS 


Morrison 


08/24/99 


99 CSE 0539 


Owens 


08/10/99 


99 CSE 0547 


Wade 


08/06/99 


99 CSE 055 1 


Chess 


08/31/99 


99 CSE 0576 


Mann 


06/09/99 


99 CSE 0581 


Morrison 


06/09/99 


99 CSE 0582 


Owens 


08/05/99 


99 CSE 0679 


Gray 


09/27/99 


9" CSE 0689 


Mann 


09/17/99 


99 CSE 0690 


Morn son 


07/20/99 


99 CSE 0702 


Owens 


09/20/99 


99 CSE 0735 


Phipps 


08/06/99 


99 CSE 0737 


Reilly 


09/20/99 


99 CSE 0801 


Gray 


08/10/99 


99 CSE 0825 


Phipps 


08/20/99 


99 CSE 083 1 


Reilly 


10/11/99 


99 CSE 0841 


Wade 


10/20/99 


99 CSE 0877 


Gray 


10/11/94 


99 CSE 0899 


Morrison 


10/20/99 


99 CSE 0957 


Gray 


10/18/99 


98 DCS 1 769 


Momson 


06/25/99 


99 DCS 0480 


Gray 


10/18/99 


99 DCS 0482 


Wade 


09/10/99 


99 DCS 0505 


Phipps 


06/30/99 


99 DCS 0555 


Gray 


07/06/99 


99 DCS 08 13 


Owens 


08/25/99 


99 DCS 0974 


Morrison 


09/20/99 



PUBLISHED DECISION 
REGISTER CITATION 



JUSTICE 

Alarm Systems Licensing Board 
Terry Allen Bnckey v. Alarm Systems Licensing Board 
Travis Enc Reardon v. Alarm Systems Licensing Board 
Bnan Anthony Barttmac v. Alarm Systems Licensing Board 
Paul Luke Walczak v. Alarm Systems Licensing Board 
Melvin T Lohr v Alarm Systems Licensing Board 
Bradford D. Penny v. Alarm Systems Licensing Board 
Benny L. Shaw v, Alann Systems Licensing Board 
Tracey Larue Santana V. Alarm Systems Licensing Board 
Donald Eugene Boger v. Alarm Systems Licensing Board 
Kajur Washburn v. Alarm Systems Licensing Board 
Timothy Chezere Sifford v. Alarm Licensing Board 

Education and Training Standards Division 

Rock Steven Edwards V. Criminal Justice Ed- & Training Stds. Comm. 
Anthony Scott Hughes v. Sheriffs' Ed & Training Standards Comm. 
Hal Pilgreen v, Cnminal Justice Ed. & Training Stds Comm. 
Emma J. Kiser \ Sheriffs' Ed. & Training Standards Comm 



99 DOJ 0097 


Wade 


05/21/99 


99 DOJ 0446 


Phipps 


07/28/99 


99 DOJ 0487 


Morrison 


05/25/49 


99 DOJ 0489 


Owens 


08/03/99 


99 DOJ 0490 


Momson 


(15/24/99 


99 DOJ 0522 


Momson 


06/08/99 


99 DOJ 0523 


Momson 


06/08/99 


99 DOJ 0524 


Phipps 


09/24/99 


99 DOJ 07 1 5 


Owens 


07/29/99 


99 DOJ 07 1 6 


Owens 


07/29/94 


99 DOJ 1022 


Morrison 


09/24/99 


98 DOJ 0906 


Chess 


05/13/94 


98 DOJ 1 530 


Chess 


05/12/94 


98 DOJ 1775 


Chess 


06/09/99 


98 DOJ 1793 


Grav 


06/07/99 



896 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



CONTESTED CASE DECISIONS 



AGENCY 

Keith Allen Norris v. Sheriffs' Ed. & Training Standards Comm. 
Sherry Davis Kenney v. Criminal Justice Ed. & Training Stds. Comm. 
Brian G Mead V. Criminal Justice Education & Training Stds. Comm. 
Russell Lee Yelverton v. Criminal Justice Ed & Training Stds. Comm. 
Mark E. Narron v. Sheriffs' Ed. & Training Stds Commission 
Shean E. Taylor v. Sheriffs' Ed. & Training Stds. Commission 
Sandra G Armstrong v. Sheriffs' Ed. & Training Standards Comm 
Edward L. Lusk v. Sheriffs' Ed & Training Standards Comm. 
Tonnette Bemnury V. Sheriffs' Ed. & Training Standards Comm 
Terry Leon Jones \ Criminal Justice Education A; Training Stds. Comm. 
Brenda J Hines v Sheriffs' Education &l Training Stds. Comm. 

Private Protective Services Board 

Tn-City Securities and James G. Hutcherson v. Private Protective Svcs. Bd. 

Tn-City Securities and James G. Hutcherson v. Private Protective Svcs. Bd. 

Ordte Hazu McFarland v. Private Protective Services Board 

Thomas E, Mewborn v, Private Protective Services Board 

Michael Lynn Arter v. Private Protective Services Board 

Jeffrey S. Moore v. Private Protective Services Board 

Bonnie Mane Keller v Private Protective Services Board 

Shawn E. Alexander v. Private Protective Services Board 

Ronald E Sulloway v. Private Protective Services Board 

Raymond Solomon v. Private Protective Services Board 

Charles E. Evans. Jr. V, Private Protective Services Board 

Lawrence Martin v Private Protective Services Board 

William E. Ellis. Sr. v. Private Protective Services Board 

Bobby James Nicholson v Private Protective Services Board 

Thomas William Atchison v Private Protective Services Board 

PUBLIC INSTRUCTION 

S H by and through her guardian and custodian. H.H and H H \ 

Henderson County Board of Education 
Paula Morrill, individually/on behalf of John Morrill v Wake Cty. Schools 
S.L.F. and S.F.F. v. Charlotte-Mecklenburg Board of Education 
Marshall Scott Brannan v, Department of Public Instruction 
Matthew Weber, and his father and next friend. Brian Weber, and Brian 

Weber v. Wilkes County Schools 
Deborah F. Brogden v. State Board of Education 
C. Kenneth Warrington v. Edgecombe County Schools 



CASE 




DATE OF 


NUMBER 


ALj 


DECISION 


99 DOJ 0045 


Mann 


07/29/99 


99 DOJ 0067 


Wade 


06/08/99 


99 DOJ 0106 


Gray 


10/07/99 


99 DOJ 01.11 


Phipps 


08/11/99 


99 DOJ 0453 


Morrison 


09/08/99 


99 DOJ 0790 


Reillv 


09/29/99 


99 DOJ 0844 


Mann 


09/24/99 


99 DOJ 0846 


Phipps 


09/29/99 


99 DOJ 0934 


Reillv 


09/29/99 


99 DOJ 1054 


Wade 


10/21/99 


99 DOJ 1138 


Wade 


10/14/99 


98 DOJ 1749*^ 


Phipps 


09/02/99 


98 DOJ 1752* 


Phipps 


09/02/99 


99 DOJ 0099 


Morrison 


10/12/99 


99 DOJ 0101 


Owens 


07/30/99 


99 DOJ 0262 


Wade 


05/25/99 


99 DOJ 0488 


Morrison 


05/24/99 


99 DOJ 040 1 


Morrison 


05/24/99 


99 DOJ 0492 


Owens 


07/19/99 


99 DOJ 0493 


Morrison 


05/24/99 


99 DOJ 0404 


Morrison 


05/25/99 


99 DOJ 0496 


Morrison 


05/25/99 


99 DOJ 0526 


Morrison 


10/25/99 


99 DOJ 0527 


Morrison 


06/08/99 


99 DOJ 0528 


Phipps 


08/17/99 


99 DOJ 1018 


Morrison 


09/21/99 


98 EDC 1 1 24 


Mann 


06/1 1/09 


98EDC 1205 


Grav 


09/24/99 


98 EDC 1640 


Mann 


06/04/99 


98 EDC 1796 


Owens 


07/13/99 


99 EDC 0291 


Mann 


09/07/99 


99 EDC 0734 


Reilly 


10/05/99 


99 EDC 0955 


Reillv 


09/29/99 



PUBLISHED DECISION 
REGISTER CITATION 



14:04 NCR 351 



14:07 NCR 568 



14:07 NCR 565 



STATE PERSONNEL 



Department of Agriculture 

H C. Troxler. Jr v Depl of Agriculture and Consumer Services 

Community Colleges 

Thomas Michael Chainberlin v. Department of Community Colleges 

Correction 

E. Wayne Irvin v. Department of Correction 

Pershield DeLoatch v. Department of Correction 

Deborah Smith v. Department of Correction 

Maydean L. Taylor v. Department of Correction 

Ann McMilhan v. Morrison Youth Institution. Department of Correction 

Edward Alan Roper v. DOC, Div. of Prisons. Western Youth Institute 

Shirley Sellars v. Department of Correction 

Sean R. Dillard v. Dept. of Correction, Pasquotank Correctional Inst. 

DeCarlos Stanley v. Department of Correction 

Steve A. Matthews v. Department of Correcuon 

Harry E. Kenan v. Capt. B.F. Lewis. Polk Youth Institution 

Robert Russell. Jr \. Jeff Jones. Div of Community Corrections 

Shirley Sellars v. Department of Correction 

Richmond Fulmore v Department of Correction. Wake Correctional 

Jerry D Crawford v. Department of Correction 99 OSP 0577 

Walter L. Whitaker v. Capt. Ricky Johnson. Pasquotank Con Inst 

Charles Creegan v. Department of Correction 

David J Dennis v Department of Corrections. Polk Youth Institution 



99 OSP 0659 


Chess 


07/27/99 


99 OSP 0286 


Phipps 


06/25/99 


94 OSP 1791 


Morrison 


05/18/99 


98 OSP 1026 


Grav 


08/11/99 


98 OSP 1120 


Chess 


06/22/99 


98 OSP 1272 


Chess 


05/14/99 


98 OSP 1275 


Chess 


05/12/00 


98 OSP 1044 


Gray 


08/11/99 


98 OSP 17XS 1 " 


Grav 


09/30/99 


98 OSP 1800 


Gray 


08/26/99 


99 OSP 0027 


Morrison 


06/22/99 


99 OSP 0162 


Morrison 


08/20/99 


99 OSP 0257 


Phipps 


06/07/99 


99 OSP 0258 


Lassiter 


09/29/99 


99 OSP 0386'" 


Grav 


09/30/99 


99 OSP 0416 


Mann 


06/04/99 


Reillv 


06/02/99 




99 OSP 0644 


Grav 


10/12/40 


99 OSP 0765 


Reillv 


08/03/99 


99 OSP 09 18 


Chess 


10/12/99 



14:01 NCR 60 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



897 



CONTESTED CASE DECISIONS 



AGENCY 

Crime Control and Public Safety 

Thomas Michael Chamherhn v. DCCPS. Center for Missing Persons 

.Xorth Carolina School for the Deaf 
Steve Crawford v. North Carolina School for the Deaf 
Danny Wilson Carson V. North Carolina School for the Deaf 
Eric Arden Hurley V. North Carolina School for the Deaf 

Employment Security Commission 

Russell J Suga v. Employment Security Commission 

Health and Human Services 

Debbie L. Whitley V. Wake County Department of Social Services 

Vera Crenshaw v. DHHS. Julian F. Keith Ale. & Drug Abuse Trtmt. Ctr. 

Key G. Rhodes v. Pitt County Mental Health Center 

Odessa D. Gwynn v. Caswell County Health Department 

Dons Virginia Wearing V. Durham County Health Department 

Anthony Ratcliff v Department of Health &. Human Services 

Julia A. Cameron v. John Umstead Hospital. Health & Human Services 

Jency Abrams v. Department of Health & Human Services 

Carlos D. Burks. Sr. v. North Carolina Special Care Center 

Bryan Benson v. Durham Cty Area MH/DD/SAS Program 

Shirley C. Jones v. Department of Health & Human Services 

Odell Hudson v. Health & Human Svcs.. Dorothea Dix Hospital 

Enca Joynes v. Durham County Department of Social Services 

Thomas Michael Chamberlin v. Off. of Juvenile Justice. Juvenile 

Services Division, 14"' District Court Division 
Cheryl Highsmith V. DHHS. Youth Svcs., New Hanover Reg. Juvenile 
Detention Center 



CASE 




NUMBER 


AL.I 


99OSP0596* J 


Gray 


99 OSP 0640 


Lassiter 


99 OS P 0641 


1 assltel 


99 OSP 0087 


Reilly 


96 OSP 1122 


Reilly 


97 OSP 0722 


Phipps 


98 OSP 0456 


Grav 


98 OSP 0924 


Phipps 


98 OSP 1299 


Gray 


98 OSP 1432 


Reillv 


99 OSP 1483 


Phipps 


99 OSP 0053 


Morrison 


99 OSP (1147 


Owens 


99 OSP 0325 


Owens 


99 OSP 0516 


Grav 


99 OSP 0533 


Mann 


99 OSP 0609 


Grav 


99 OSP 067 1 


Grav 


99 OSP 0673* 4 


Gray 


99 OSP 0763 


Owens 



DATE OF 
DECISION 



08/16/99 



10/18/99 
10/18/99 
06/24/99 



05/26/99 



09/27/99 
08/05/99 
07/09/99 
08/25/99 
06/18/99 
09/22/99 
06/22/99 
08/11/99 
08/25/99 
08/31/99 
09/24/99 
07/07/99 
07/13/99 
08/16/99 

09/03/99 



PUBLISHED DECISION 
REGISTER CITATION 



Johnston County 

Lib Romaine Lee \. County of Johnston 

Justice 

Thomas Michael Chamberlin v. Justice. Justice Academy 

Labor 

Robert C. Adams v. Department of Labor 

Department of Public Instruction 
Billy McEachem v. Schools of Robeson County 
John Lee Herbin v. Smarkand Manor Training School 
Linda D Chapman v. Lenoir County Public Schools 

Transportation 

Judy S Gnndstaff v. Department of Transportation 
Charles W McAdams v. Dept of Transportation. Div/Motor Vehicles 
Larry R. Lane v. Department of Transportation 99 OSP 0105 
Ronald Roberson v. Dept. of Transportation. Right-of-Way Branch 
Shelvia Davis v. Department of Transportation 99 OSP 0156 
Carmahta Daniels v. Department of Transportation 

University' of Sorth Carolina 

Wanda Troxler v. A & T State University and Dr. Ray J. Davis 
Vivian Smith Hammiel. Ling-Chih C Hsu and Joel A. Williams v. East 

Carolina University 
Vivian Smith Hammiel. Ling-Chih C Hsu and Joel A Williams v. East 

Carolina University 
Vivian Smith Hammiel. Ling-Chih C Hsu and Joel A. Williams v. East 

Carolina University 
Jackie S. Flowers v. East Carolina University 
James A. Benton v. University of North Carolina at Charlotte 
Rex A. Coughenour v. University of North Carolina at Chapel Hill 
Anna Anita Huff \ Dr Lonnie Sharpe/Dr Reza Salami-Coll. /Engineering 
Rex A Coughenour v. University of North Carolina at Chapel Hill 
Thomas Michael Chamberlin v. UNC vf Chapel Hill, Dept. of University 

Housing. Division of Student Affairs 
Halycon Tudie Blake v University of North Carolina at Chapel Hill 
Bndsette R. Booker v. Winston-Salem State University 



99 OSP 0456 


Morrison 


06/02/99 


99 OSP 0308 


Phipps 


06/11/99 


99 OSP 0667 


Gray 


07/28/99 


99 OSP 0189 


Wade 


09/04/99 


99 OSP 0273 


Grav 


08/04/99 


99 OSP 0691 


Reilly 


08/16/99 


98 OSP 1028 


Grav 


09/30/99 


99 OSP 0034 


Mann 


06/23/99 


Mann 


06/11/99 




99OSP0142 


Morrison 


06/08/99 


Owens 


06/23/99 




99 OSP 0264 


Gray 


08/20/99 


97 OSP 08 19 


Phipps 


08/02/99 


97 OSP 1268*- 


Phipps 


07/06/99 


97 OSP I269< ; 


Phipps 


07/06/99 


97 OSP 1270* ; 


Phipps 


07/06/99 


98 OSP I61S 


Reillv 


06/24/99 


99 OSP 0047 


Wade 


10/08/99 


99 OSP 05 1 7 •'■ 


Reillv 


08/27/99 


99 OSP 0599 


Chess 


07/16/99 


99 OSP 062.3*" 


Reillv 


08/27/99 


99 OSP 0674* ! 


Gray 


08/16/99 


99 OSP 0686 


Grav 


07/08/99 


99 OSP 0731 


Chess 


09/03/99 



898 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



CONTESTED CASE DECISIONS 



At.LMV 

Rex A Couehenour v. University of North Carolina at Chapel Hill 
Temperance T. Tobe v. North Carolina Central University 

DEPARTMENT OF TRANSPORTATION 

Peter Kay.. Stem v. Department of Transportation 

UNIVERSITY OF NORTH CAROLINA 

Stephanie A Payne \. UNC Hospitals 
Barbara A. Russell V. UNC Hospitals 
Robin Perkins Stephens v, UNC Hospitals 
Rita Jo Kincaid v. UNC Hospitals 
Rita Jo Kincaid v. UNC Hospitals 



CASE 




DATE OF 


NUMBER 


AU 


DECISION 


9° OSP 0830*" 


Reilly 


08/27/99 


99 OSP 0865 


Chess 


08/24/99 


99 DOT 0668 


Owens 


07/29/99 


99 UNC 0375 


Morrison 


06/21/99 


99 UNC 0540 


Gray 


08/11/99 


99 UNC 0563 


Owens 


07/21/99 


99 UNC 0746* 5 


ReilK 


08/09/99 


99 UNC 0747*' 


Reilly 


08/09/99 



PUBLISHED DECISION 
REGISTER CITATION 



14:10 



NORTH CAROLINA REGISTER 



November 15, 1999 



899 



CONTESTED CASE DECISION 



STATE OF NORTH CAROLINA 



COUNTY OF MACON 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

98 EHR 1735 



NEIGHBORS AGAINST THE CULLASAJA ASPHALT ) 

PLANT and BLUE RIDGE ENVIRONMENTAL DEFENSE ) 
LEAGUE, INC., ) 

Petitioners, ) 

) 

v. ) 

) 
NORTH CAROLINA DEPARTMENT OF ENVIRONMENT I 
AND NATURAL RESOURCES. DIVISION OF AIR QUALITY) 

Respondent, ) 

and ) 
RHODES BROTHERS PAVING INC. and CAROLINA ) 
ASPHALT PAVEMENT ASSOCIATION ) 
Respondent-Intervenors ) 



RECOMMENDED DECISION 



This matter came before the undersigned Administrative Law Judge pursuant to the Joint Motion for Summary Judgment 
filed on August 27. 1999 by the Respondent and Respondent-Intervenors. The Petitioners filed their response on September 10, 
1999. A motions hearing was conducted by teleconference on September 13, 1999. Based on the motions, responses, affidavits, 
exhibits, and oral argument presented by the parties, the undersigned Administrative Law Judge hereby allows in part and denies 
in part the Joint Motion for Summary Judgment. 

This case concerns the Respondent's issuance of Air Permit No. 08556R00 (the "Permit") to Rhodes Brothers Paving. 
Inc. ("Rhodes") on October 14. 1998. In the Petition for Contested Case Hearing. Petitioners presented seven allegations in 
support of their claim that the Respondent improperly issued the Permit to Rhodes. In the Joint Motion for Summary Judgment, 
the Respondent and Respondent-Intervenor moved for judgment as matter of law on all issues raised by the Petitioners. 

Based on the record and the oral argument of counsel for all parties, the undersigned Administrative Law Judge hereby 
makes the following findings and conclusions: 

1 In paragraph 5(a) of the Petition, the Petitioners allege that "the health impacts from the noxious emissions from 

the asphalt plant would have an unreasonable and severe impact on persons living nearby, especially in children, the elderly and 
those with health problems." As demonstrated in the record, including the Joint Motion in Limine and Motion to Exclude Expert 
Witness, the applicable health-based ambient air standards (the acceptable ambient levels, or "AALs") are found at 15A NCAC 
2D.1 104. The Respondent, prior to issuing the Permit, determined through modeling that the RHODES facility would not result 
in an exceedance of the applicable AALs. (van der Vaart Affidavit. II 4) The Respondent issued the Permit with conditions that 
incorporate the applicable standards for toxic pollutants. (Permit Conditions A6 and A7). With regard to health impacts from the 
Rhodes facility, the Petitioners have failed to present any evidence which raises any issues of material fact regarding whether the 
Respondent exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or 
capriciously, or failed to act as required by law or rule. The Respondent and Respondent-Intervenors are entitled to judgment as a 
matter of law on this issue. 

2. In paragraph 5(b) of the Petition, the Petitioners allege that "the modeling of the air quality concentrations and 
fugitive emissions were based on inaccurate and unsubstantiated data and studies." The material facts concerning this issue are in 
dispuie. Therefore, summary judgment is improper. 

3. In paragraph 5(c) of the Petition, the Petitioners allege that "the application lacked the consistent and accurate 
study of on-site meteorological conditions that has been required in similar mountainous terrains." The material facts concerning 
this issue are in dispute. Therefore, summary judgment is improper. 

4. In paragraph 5(d) of the Petition, the Petitioners allege that "other impacts, such as odor, groundwater and 
surface water contamination, flooding, and excessive truck traffic, were not investigated." Petitioners concede that summary 
judgment is appropriate for groundwater and surface water contamination. Hooding and excessive truck traffic. (Petitioners' 
Response to Joint Motion for Summary Judgment, p. 14) The Respondent's authority to regulated odor is found at 15A NCAC 



900 



NORTH CAROLINA REGISTER 



November 15, 1999 



14:10 



CONTESTED CASE DECISION 



2D.0522. The Respondent issued the Permit with conditions that incorporate the applicable standards for control of odor. (Permit 
Condition A5) With regard to the investigation of "other impacts" from the Rhodes facility, the Petitioners have failed to present 
any evidence which raises any issues of material fact regarding whether the Respondent exceeded its authority or jurisdiction, 
acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, or failed to act as required by law or rule. The 
Respondent and Respondent-Intervenors are entitled to judgment as a matter of law on this issue. 

5. In paragraph 5(e) of the Petition, the Petitioners allege that "the applicant's track record of compliance with 
environmental laws at its other facilities is unacceptable and unsatisfactory." The material facts concerning this issue are in 
dispute. Therefore, summary judgment is improper. 

6. In paragraph 5(f) of the Petition, the Petitioners allege that "the State agency did not provide sufficient notice to 
allow the Neighbors to request a public hearing nor did it provide the opportunity for public comments." The Respondent's duty 
to provide public notice is found at 15A NCAC 2Q.0306(a)( 1 ), which states: 

The [Respondent] shall provide for public notice for comments with an opportunity to request a public hearing 
on draft permits for . . . any source that may be designated by the Director based on significant public interest 
relevant to air quality. 

It is undisputed that the Respondent received no public comments and no request for a public hearing regarding the Rhodes 
application while it was pending, (van der Vaart Affidavit. 1 10) Although Rhodes did not provide a copy of a draft permit 
application to the local government for the purpose of obtaining a zoning consistency determination as required by N.C. Gen. Stat. 
§ 143-215.108(0. the undisputed facts show that facility is located in an unincorporated and unzoned area of Macon County. 
(Billy Richard Rhodes Affidavit, ffl 7-8) In addition, it is undisputed that Rhodes received a March 16. 1998 letter from the 
Macon Counts Planning Department stating there is no zoning in the unincorporated area of Macon County and it is undisputed 
that Rhodes provided a copy of the same letter to the Respondent as part of its permit application. (Billy Richard Rhodes 
Affidavit, ff 7-8 and Attachment) The undisputed facts arc sufficient to show that the Rhodes permit application complied with 
the underlying purpose of N.C. Gen. Stat. S 143-215. 108(f). With regard to public notice, the Petitioners have failed to present 
anv evidence which raises any issues of material fact regarding whether the Respondent exceeded its authority or jurisdiction, 
acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, or failed to act as required by law or rule. The 
Respondent and Respondent-Intervenors are entitled to judgment as a matter of law on this issue. 

7. In paragraph 5(g) of the Petition, the Petitioners allege that "the proposed asphalt plant should be treated as a 
"new source" and comply with standards for new sources." The relevant legal provisions are 40 CFR Part 60. Subpart I ("New 
Source Performance Standards for Hot Mix Asphalt Facilities") and 15A NCAC 2D. 0521 ("Control of Visible Emissions"). The 
federal NSPS regulations apply to affected facilities that commenced construction or modification after June 1 1. 1973. 40 CFR 
§ 60.90(b). Relocation or transfer of ownership of a facility, by itself, does not constitute a modification within the meaning of the 
NSPS regulations. 40 CFR ij 60.14(e)(6). For sources existing as of July 1. 1971. visible emissions may not exceed forty percent 
(407c ) opacity. 1 5A NCAC 2D. 052 1(c). It is undisputed that all of the emissions sources at the Rhodes facility were constructed 
prior to July 1. 1971. (Permit Review. Exhibit 2 to Joint Motion for Summary Judgment i Therefore, the NSPS regulations are 
not applicable and the facility is subject to the 409; opacity standard in 15A NCAC 2D. 052 1(c). The Permit incorporates the 
applicable standard for visible emissions. (Permit Condition A4) With regard to the applicability of standards for new sources, 
the Petitioners have failed to present any evidence which raises any issues of material fact regarding whether the Respondent 
exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, or failed 
to act as required by law or rule. The Respondent and Respondent-Intervenors are entitled to judgment as a matter of law on this 
issue. 

ORDER 

Wherefore, the undersigned Administrative Law Judge orders the following: 

1 . With regard to allegations 5(a), 5(d). 5(f). and 5(g) in the Petition, the Respondent and Respondent-Intervenors 

are entitled to judgment as a matter of law and the Joint Motion for Summary Judgment is ALLOWED. 



14:10 NORTH CAROLINA REGISTER November 15, 1999 901 



CONTESTED CASE DECISION 



2. With regard to allegations 5(b). 5(e) and 5(e) in the Petition, the Joint Motion for Summary Judgment is 

DENIED. 



This the 2 1 sl day of September. 1999. 



Beeeher R. Gray 
Administrative Lav. Judtie 



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